The Interstate Child UCCJEA & UIFSA -...

The Interstate Child

UCCJEA & UIFSA

Barry J. BrooksAssistant Attorney General

Child Support DivisionOffice of the Attorney General of Texas

P. O. Box 12027, Mail Code 590Austin, TX 78711-2027

[512] 433-4678FAX [512] 433-4679

[email protected]

Table of Contents

PageBackground. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Part A - Basic Concepts

A-1 Subject Matter Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

A-2 Status vs. Personal Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

A-3 ECJ/CEJ. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

Part B - The Process

B-1 Courts, Tribunals and Private Attorneys.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

B-2 Information Provided to the Tribunal. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

B-3 Choice of Law/Service of Process. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

B-4 Evidence Discovery, and Procedures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

B-5 Communication Between Tribunals. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B-6 Immunity. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

B-7 Emergency and Simultaneous Proceedings /“Clean Hands”. . . . . . . . . . . . . . . . . . . . . . 15

B-8 Inconvenient or Inappropriate Forum. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

B-9 Costs. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Part C - Going Interstate

C-1 Registration. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

C-2 Assuming Modification Jurisdiction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25

C-3 Enforcement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

C-4 Agency Involvement. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

Part D - Unique Provisions

D-1 UCCJEA - Expedited Processing. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D-2 UCCJEA - Temporary Visitation.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D-3 UIFSA - Multiple Orders. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

D-4 UIFSA - Minor as a Party. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

D-5 UIFSA - Defense of Nonparentage. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

Part E - Interjurisdictional applications

E-1 Tribes. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

E-2 International. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

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The Interstate Child

(As used in this paper, “family” means one child, at least, and the parents of that child,regardless of the marital status of the parents.)

Background Historically, family law is a matter of state rather than federal law. However, for variousreasons, people travel more. As a result, family law has to take on an interstate, andinternational component. The National Conference of Commissioners on Uniform State Laws(NCCUSL) is tasked with drafting laws on various subjects that attempt to bring a uniformityacross state lines.

With respect to family law, different states had adopted different approaches to issues relatedto custody and visitation, a.k.a. “parenting time”, that often resulted in conflicting resolutions. To seek harmony in this area, the NCCUSL has promulgated the Uniform Child CustodyJurisdiction and Enforcement Act (UCCJEA).

Likewise, it also promulgated the Uniform Interstate Family Support Act (UIFSA) to governissues related to family support. In doing so, the UIFSA was specifically written to stop theexisting practice of creating multiple valid orders with differing support amounts that could beentered as an obligor moved around the country.

While each Act is deals with a different family related issue, they share very common features. Often, there are virtually identical provisions although the placement within the act and within acertain section varies.

UIFSA UCCJEA

• is the successor to the Uniform

Reciprocal Enforcement of Support Act

(URESA) & the the Revised Uniform

Reciprocal Enforcement of Support Act

(RURESA) which had been adopted by

different states with differing versions

• was “mandated “ for adoption by all states

under the provisions of the federal

Personal Responsibility and W ork

Opportunity Reconciliation Act of 1996

• all states* have enacted the version

promulgated in 1996 and 18 states have

enacted the 2001 version

• is in harmony with the federal Full Faith

and Credit for Child Support Orders Act

(FFCCSOA), 28 U.S.C.A.1738B

• is the successor to the Uniform Child

Custody Jurisdiction Act (UCCJA)

• is not mandated for adoption

• 45 states have adopted the UCCJEA with

the others having some version of the

UCCJA

• is in harmony with the federal Full Faith

and Credit Given to Child Custody

Determinations more commonly known as

the Parental Kidnaping Prevention Act

(PKPA), 28 U.S.C.A. 1738A

* the “states” subject to the mandate are all 50 States plus the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands

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The UCCJEA was approved by the NCCUSL in 1997 and has been unchanged. The UIFSA ismore of a “work in progress”. Originally approved in 1992, it underwent revisions in 1996primarily to accommodate the needs expressed by employers regarding the new ability to seekimplementation of income withholding across state lines. The UIFSA was also revised in 2001with the main focus on the processing of international cases. The excerpts used in this paperare from the UIFSA 2001, unless noted otherwise. Because not all states have adopted the2001 revisions, to identify the changes made by UIFSA 2001, additions are underlined anddeletions appear in strikeout. It should be noted that a section of text that appears deleted inone section is most often found in a new or revised section. The revisions made in UIFSA 2001were not intended to make any substantive changes from the 1996 version.

Part A - Basic Concepts

A-1 Subject Matter Jurisdiction

Both the UCCJEA and the UIFSA make clear exactly what aspects of the family dynamic aregoverned by which act. They do so using both inclusive and exclusive language. The mostimportant feature of both acts is the specific exclusion of the subject matter covered by theother act. The UCCJEA also deliberately omits adoption proceedings and there are severalInterstate Compacts that cover this issue.

One shared element that each act must deal with is the issue of parentage. Parentage mayarise in the context of either getting a custody order or obtaining a support order. Whileparentage issues under the Uniform Parentage Act (UPA) are beyond the scope of this paper,the UPA is drafted to work in harmony with both the UCCJEA and the UIFSA.

While the primary focus of the UIFSA is upon child support, it is also the legal mechanismthrough which spousal support can be established, modified, and enforced.

UCCJEA UIFSA

SECTION 102. DEFINITIONS. In this [Act]:

(3) “Child-custody determination” means a

judgment, decree, or other order of a court

providing for the legal custody, physical custody,

or visitation with respect to a child. The term

includes a permanent, temporary, initial, and

modification order. The term does not include an

order relating to child support or other monetary

obligation of an individual.

(4) “Child-custody proceeding” means a

proceeding in which legal custody, physical

custody, or visitation with respect to a child is an

issue. The term includes a proceeding for

divorce, separation, neglect, abuse, dependency,

guardianship, paternity, termination of parental

rights, and protection from domestic violence, in

which the issue may appear. The term does not

include a proceeding involving juvenile

delinquency, contractual emancipation, or

enforcement under [Article] 3.

[Section 101 of UIFSA 96]


(23) “Support order” means a judgment, decree,

or order, or directive, whether temporary, final, or

subject to modification, issued by a tribunal for the

benefit of a child, a spouse, or a former spouse,

which provides for monetary support, health care,

arrearages, or reimbursement, and may include

related costs and fees, interest, income

withholding, attorney’s fees, and other relief.


SECTION 104. REMEDIES CUMULATIVE.

(a) Remedies provided by this [Act] are

cumulative and do not affect the availability of

remedies under other law, including the

recognition of a support order of a foreign country

or political subdivision on the basis of comity.

(b) This [Act] does not:

(1) provide the exclusive method of establishing

or enforcing a support order under the law of this

State; or

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SECTION 103. PROCEEDINGS GOVERNED BY

OTHER LAW.

This [Act] does not govern an adoption

proceeding or a proceeding pertaining to the

authorization of emergency medical care for a

child.

(2) grant a tribunal of this State jurisdiction to

render judgment or issue an order relating to

[child custody or visitation] in a proceeding under

this [Act].

A-2 Status vs Personal Jurisdiction

The most fundamental difference between the UCCJEA and the UIFSA is the approach to the“other” jurisdiction needed. In addition to the requisite subject matter jurisdiction, the UCCJEArequires a court have “status” jurisdiction vis-a-vis the child. This status jurisdiction is based onthe location of the child and the significant connection the child has with the forum state. Theultimate determining factor is the “home state” of the child. The historical basis for the homestate approach is that a state has an interest in the protection and use of “property” located inthat state. While a state is empowered to make a custody determination without havingpersonal jurisdiction over every individual, the UCCJEA recognizes that a binding effect canonly be imposed on those who have been served or notified.

To impose a financial obligation upon an individual, the U. S. Constitution requires the forum tohave “personal” jurisdiction over the obligor. However, the requirement for personal jurisdictiondoes not mean the obligor has to be currently residing in the forum state. The inquiry iswhether the individual has taken some purposeful act which would create a reasonableexpectation that the forum would have a justiciable interest in the action or the result of theaction. In promulgating the UIFSA, the NCCUSL set forth several bases that are intended toencompass all conduct that is legally sufficient for personal jurisdiction.

UCCJEA UIFSA


(7) “Home State” means the State in which a

child lived with a parent or a person acting as a

parent for at least six consecutive months

immediately before the commencement of a child-

custody proceeding. In the case of a child less

than six months of age, the term means the State

in which the child lived from birth with any of the

persons mentioned. A period of temporary

absence of any of the mentioned persons is part

of the period.

SECTION 201. INITIAL CHILD-CUSTODY

JURISDICTION.

(a) Except as otherwise provided in Section 204,

a court of this State has jurisdiction to make an

initial child-custody determination only if:

(1) this State is the home State of the child on

the date of the commencement of the proceeding,

or was the home State of the child within six

months before the commencement of the

proceeding and the child is absent from this State

but a parent or person acting as a parent

SECTION 201. BASES FOR JURISDICTION

OVER NONRESIDENT.

(a) In a proceeding to establish, or enforce, or

modify a support order or to determine parentage,

a tribunal of this State may exercise personal

jurisdiction over a nonresident individual [or the

individual’s guardian or conservator] if:

(1) the individual is personally served with

[citation, summons, notice] within this State;

(2) the individual submits to the jurisdiction of

this State by consent in a record, by entering a

general appearance, or by filing a responsive

document having the effect of waiving any contest

to personal jurisdiction;

(3) the individual resided with the child in this

State;

(4) the individual resided in this State and

provided prenatal expenses or support for the

child;

(5) the child resides in this State as a result of

the acts or directives of the individual;

(6) the individual engaged in sexual intercourse

in this State and the child may have been

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continues to live in this State;

(2) a court of another State does not have

jurisdiction under paragraph (1), or a court of the

home State of the child has declined to exercise

jurisdiction on the ground that this State is the

more appropriate forum under Section 207 or 208,

and:

(A) the child and the child’s parents, or the child

and at least one parent or a person acting as a

parent, have a significant connection with this

State other than mere physical presence; and

(B) substantial evidence is available in this

State concerning the child’s care, protection,

training, and personal relationships;

(3) all courts having jurisdiction under paragraph

(1) or (2) have declined to exercise jurisdiction on

the ground that a court of this State is the more

appropriate forum to determine the custody of the

child under Section 207 or 208; or

(4) no court of any other State would have

jurisdiction under the criteria specified in

paragraph (1), (2), or (3).

(b) Subsection (a) is the exclusive jurisdictional

basis for making a child-custody determination by

a court of this State.

(c) Physical presence of, or personal jurisdiction

over, a party or a child is not necessary or

sufficient to make a child-custody determination.

SECTION 106. EFFECT OF CHILD-CUSTODY

DETERMINATION.

A child-custody determination made by a court of

this State that had jurisdiction under this [Act]

binds all persons who have been served in

accordance with the laws of this State or notified

in accordance with Section 108 or who have

submitted to the jurisdiction of the court, and who

have been given an opportunity to be heard. As

to those persons, the determination is conclusive

as to all decided issues of law and fact except to

the extent the determination is modified.

conceived by that act of intercourse; [or]

(7) [the individual asserted parentage in the

[putative father registry] maintained in this State

by the [appropriate agency]; or

(8)] there is any other basis consistent with the

constitutions of this State and the United States

for the exercise of personal jurisdiction.

(b) The bases of personal jurisdiction set forth in

subsection (a) or in any other law of this State

may not be used to acquire personal jurisdiction

for a tribunal of the State to modify a child support

order of another State unless the requirements of

Section 611 or 615 are met.

SECTION 202. PROCEDURE WHEN

EXERCISING JURISDICTION OVER

NONRESIDENT DURATION OF PERSONAL

JURISDICTION.

Personal jurisdiction acquired by a tribunal of this

State in a proceeding under this [Act] or other law

of this State relating to a support order continues

as long as a tribunal of this State has continuing,

exclusive jurisdiction to modify its order or

continuing jurisdiction to enforce its order as

provided by Sections 205, 206, and 211.

A tribunal of this State exercising personal

jurisdiction over a nonresident under Section 201

may apply Section 316 (Special Rules of Evidence

and Procedure) to receive evidence from another

State and Section 318 (Assistance with Discovery)

to obtain discovery through a tribunal of another

State. In all other respects, Articles 3 through 7 do

not apply and the tribunal shall apply the

procedural and substantive law of this State,

including the rules on choice of law other than

those established by this [Act].

[moved to Section 210 in UIFSA 2001}

A-3 ECJ/CEJ

The historical problem addressed by both the UCCJEA and the UIFSA was the practice ofdifferent courts or tribunals issuing different orders. The pervasive practice pre-UIFSA was fora state with current jurisdiction over an obligor to issue its own order setting a support amounteven when there were previous orders in one or more states. The fundamental problem wasthat each of those orders was valid which resulted in the ultimate support obligation being aconsolidation of the various amounts ordered, using the highest order in effect at the time. Often, the higher order was not the most recent order and not the order being actively enforced. The multiple order situation was confusing to both the obligor and obligee.

A similar problem existed when the current home state entered a custody or visitation order

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different from the order entered in a previous home state. A federal attempt using the ParentalKidnaping Prevention Act ( PKPA), 28 U.S.C.A. 1738A, had not resolved the problem.

Thus, both the UCCJEA and the UIFSA adopted a concept recognized in many states thatthere should be only one tribunal with the exclusive jurisdiction to modify the currentarrangement. The UIFSA uses the term “continuing, exclusive jurisdiction”; the UCCJEA uses“exclusive, continuing jurisdiction”. It should be noted that the exclusivity to modify does notpreclude another forum from enforcing the existing order. Especially for support, nothingprecludes several forums from taking simultaneous enforcement actions based upon thelocation of the obligor or an obligor’s asset. Of course, the enforcement actions must be co-ordinated in order to prevent double payment by the obligor or one action having somepreclusive effect on the other action.

UCCJEA UIFSA

SECTION 202. EXCLUSIVE, CONTINUING

JURISDICTION.


a court of this State which has made a child-

custody determination consistent with Section 201

or 203 has exclusive, continuing jurisdiction over

the determination until:

(1) a court of this State determines that neither

the child, the child’s parents, and any person

acting as a parent do not have a significant

connection with this State and that substantial

evidence is no longer available in this State

concerning the child’s care, protection, training,

and personal relationships; or

(2) a court of this State or a court of another

State determines that the child, the child’s

parents, and any person acting as a parent do not

presently reside in this State.

(b) A court of this State which has made a child-

custody determination and does not have

exclusive, continuing jurisdiction under this

section may modify that determination only if it

has jurisdiction to make an initial determination

under Section 201.

SECTION 205. CONTINUING, EXCLUSIVE

JURISDICTION TO MODIFY CHILD-SUPPORT

ORDER.

(a) A tribunal of this State issuing that has issued

a child-support order consistent with the law of

this State has and shall exercise continuing,

exclusive jurisdiction over a to modify its

child-support order if the order is the controlling

order and:

(1) as long as at the time of the filing of a request

for modification this State remains is the

residence of the obligor, the individual obligee, or

the child for whose benefit the support order is

issued; or

(2) until all of the parties who are individuals

have filed written consents with the tribunal of this

State for a tribunal of another State to modify the

order and assume continuing, exclusive

jurisdiction even if this State is not the residence

of the obligor, the individual obligee, or the child

for whose benefit the support order is issued, the

parties consent in a record or in open court that

the tribunal of this State may continue to exercise

jurisdiction to modify its order.

(b) A tribunal of this State issuing that has issued

a child-support order consistent with the law of

this State may not exercise its continuing,

exclusive jurisdiction to modify the order if the

order has been modified by a tribunal of another

State pursuant to this [Act] or a law substantially

similar to this [Act].:

(1) all of the parties who are individuals file

consent in a record with the tribunal of this State

that a tribunal of another State that has jurisdiction

over at least one of the parties who is an

individual or that is located in the State of

residence of the child may modify the order and

assume continuing, exclusive jurisdiction; or

(2) its order is not the controlling order.

(c) If a child-support order of this State is modified

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by a tribunal of another State pursuant to this [Act]

or a law substantially similar to this [Act], a tribunal

of this State loses its continuing, exclusive

jurisdiction with regard to prospective enforcement

of the order issued in this State, and may only:

(1) enforce the order that was modified as to

amounts accruing before the modification;

(2) enforce nonmodifiable aspects of that order;

and

(3) provide other appropriate relief for violations

of that order which occurred before the effective

date of the modification. (d) A tribunal of this State

shall recognize the continuing, exclusive

jurisdiction of

If a tribunal of another State which has issued a

child-support order pursuant to this [the Uniform

Interstate Family Support Act] or a law

substantially similar to this [that Act] which

modifies a child-support order of a tribunal of this

State, tribunals of this State shall recognize the

continuing, exclusive jurisdiction of the tribunal of

the other State.

(d) A tribunal of this State that lacks continuing,

exclusive jurisdiction to modify a child-support

order may serve as an initiating tribunal to request

a tribunal of another State to modify a support

order issued in that State.

(e) A temporary support order issued ex parte or

pending resolution of a jurisdictional conflict does

not create continuing, exclusive jurisdiction in the

issuing tribunal.

(f) A tribunal of this State issuing a spousal

support order consistent with the law of this State

has continuing, exclusive jurisdiction over a

spousal support order throughout the existence of

the support obligation. A tribunal of this State may

not modify a spousal support order issued by a

tribunal of another State having continuing,

exclusive jurisdiction over that order under the law

of that State.

[location of (f) in UIFSA 2001]

SECTION 211. CONTINUING, EXCLUSIVE

JURISDICTION TO MODIFY

SPOUSAL-SUPPORT ORDER.

(a) A tribunal of this State issuing a

spousal-support order consistent with the law of

this State has continuing, exclusive jurisdiction to

modify the spousal-support order throughout the

existence of the support obligation.

(b) A tribunal of this State may not modify a

spousal-support order issued by a tribunal of

another State having continuing, exclusive

jurisdiction over that order under the law of that

State.

(c) A tribunal of this State that has continuing,

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exclusive jurisdiction over a spousal-support order

may serve as:

(1) an initiating tribunal to request a tribunal of

another State to enforce the spousal-support

order issued in this State; or

(2) a responding tribunal to enforce or modify its

own spousal-support order.

Part B - The Process

B-1 Courts, Tribunals, and Private Attorneys

The task of the NCCUSL is to draft uniform Acts for general use and applicability. It is certainlyanticipated these will be used by private practitioners. However, in drafting the UIFSA, theNCCUSL was acutely aware of the role the state-based child support agencies (a.k.a. IV-Dagencies, based on the section of the Social Security Act that created them) play in theestablishment, modification, and enforcement of child support obligations. To seek harmonybetween the way these agencies operate and the legal structure imposed by the UIFSA, theDrafting Committee invited numerous Observers to participate.

One of the early issues identified is the fact that many states operate their child supportprograms using an administrative or quasi-judicial process. As a result, the UIFSA uses theterm “tribunal” to describe the entity with the authority to handle support issues. Each statedesignates its particular tribunal. Some states have designated courts for some functions andadministrative agencies for others.

Another area the drafters of the UIFSA were sensitive to was a possible perception that the Actcould only be used by the child support agencies. To allay any concerns, the UIFSA contains aspecific provision regarding private counsel representation.

As a general matter, the Title IV-D child support agencies are precluded from activeinvolvement in child custody matters; however, local Domestic Relations Offices may offerthese services. Due to the absence of most IV-D issues, the UCCJA contains neither thetribunal concept nor any specific language about private counsel involvement. The term“tribunal” will be used to include courts unless there is a need for a distinction.

UCCJEA UIFSA


(6) “Court” means an entity authorized under the

law of a State to establish, enforce, or modify a

child-custody determination.



(24) “Tribunal” means a court, administrative

agency, or quasi-judicial entity authorized to

establish, enforce, or modify support orders or to

determine parentage.


SECTION 103. TRIBUNAL OF STATE. The

[court, administrative agency, quasi-judicial entity,

or combination] [is the tribunal] [are the tribunals]

of this State.

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SECTION 309. PRIVATE COUNSEL. An

individual may employ private counsel to

represent the individual in proceedings authorized

by this [Act].

B-2 Information Provided to the Tribunal

Both the UCCJEA and the UIFSA recognize they are inheriting a world in which someinformation must be shared and other information protected. Both acts also recognize theybecame effective in a world that had created multiple orders dealing with the same rights andduties. As a result, the UCCJEA requires the existence of other orders or other proceedingsinvolving the child be revealed in the initial pleading. The court can then decide if it isappropriate for it to assert any jurisdiction.

The UIFSA dynamic regarding multiple orders contemplates the registration process will beutilized. [see C-1] In the UIFSA 96, a strict reading might lead to the conclusion that submission of all existing orders to the tribunal was duplicated by having them included both atthe time of registration and when a pleading was filed, which could be simultaneously. TheUIFSA 2001 revises this to provide a “fall back” requirement to include copies of multiple ordersonly if they have not been tendered as part of the registration process.

With respect to nondisclosure of identifying information to protect a person from potential harmor abuse, the UIFSA 96 adopted a process that was soon seen to be unworkable. Ostensibly,the party seeking protection had to pursue getting an order for nondisclosure in that person’sstate. In the UIFSA 2001, the drafters adopted the process already in the UCCJEA, i.e. basedupon a sworn affidavit or pleading filed in the state ruing on the custody or support issues, thetribunal would order the information not be disclosed unless the other party demonstrates aneed for disclosure.

UCCJEA UIFSA

SECTION 209. INFORMATION TO BE

SUBMITTED TO COURT.

(a) [Subject to [local law providing for the

confidentiality of procedures, addresses, and

other identifying information], in] [In] a child-

custody proceeding, each party, in its first

pleading or in an attached affidavit, shall give

information, if reasonably ascertainable, under

oath as to the child’s present address or

whereabouts, the places where the child has lived

during the last five years, and the names and

present addresses of the persons with whom the

child has lived during that period. The pleading or

affidavit must state whether the party:

(1) has participated, as a party or witness or in

any other capacity, in any other proceeding

concerning the custody of or visitation with the

child and, if so, identify the court, the case

number, and the date of the child-custody

determination, if any;

(2) knows of any proceeding that could affect the

SECTION 311. PLEADINGS AND

ACCOMPANYING DOCUMENTS.

(a) A In a proceeding under this [Act], a

[petitioner] seeking to establish or modify a

support order, or to determine parentage in a

proceeding under the [Act], or to register and

modify a support order of another State must

verify the file a [petition]. Unless otherwise

ordered under Section 312 (Nondisclosure of

Information in Exceptional Circumstances), the

[petition] or accompanying documents must

provide, so far as known, the name, residential

address, and social security numbers of the

obligor and the obligee or the parent and alleged

parent, and the name, sex, residential address,

social security number, and date of birth of each

child for whom whose benefit support is sought or

whose parentage is to be determined. The

Unless filed at the time of registration, the

[petition] must be accompanied by a certified copy

of any support order in effect known to have been

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current proceeding, including proceedings for

enforcement and proceedings relating to domestic

violence, protective orders, termination of parental

rights, and adoptions and, if so, identify the court,

the case number, and the nature of the

proceeding; and

(3) knows the names and addresses of any

person not a party to the proceeding who has

physical custody of the child or claims rights of

legal custody or physical custody of, or visitation

with, the child and, if so, the names and

addresses of those persons.

(b) If the information required by subsection (a)

is not furnished, the court, upon motion of a party

or its own motion, may stay the proceeding until

the information is furnished.

(c) If the declaration as to any of the items

described in subsection (a)(1) through (3) is in the

affirmative, the declarant shall give additional

information under oath as required by the court.

The court may examine the parties under oath as

to details of the information furnished and other

matters pertinent to the court’s jurisdiction and the

disposition of the case.

(d) Each party has a continuing duty to inform

the court of any proceeding in this or any other

State that could affect the current proceeding.

[(e) If a party alleges in an affidavit or a pleading

under oath that the health, safety, or liberty of a

party or child would be jeopardized by disclosure

of identifying information, the information must be

sealed and may not be disclosed to the other

party or the public unless the court orders the

disclosure to be made after a hearing in which the

court takes into consideration the health, safety,

or liberty of the party or child and determines that

the disclosure is in the interest of justice.]

issued by another tribunal. The [petition] may

include any other information that may assist in

locating or identifying the [respondent].

(b) The [petition] must specify the relief sought.

The [petition] and accompanying documents must

conform substantially with the requirements

imposed by the forms mandated by federal law for

use in cases filed by a support enforcement

agency.

SECTION 312. NONDISCLOSURE OF

INFORMATION IN EXCEPTIONAL

CIRCUMSTANCES. Upon a finding, which may

be made ex parte, that the health , safety, or

liberty of a party or child would be unreasonably

put at risk by the disclosure of identifying

information, or if an existing order so provides, a

tribunal shall order that the address of the child or

party or other identifying information not be

disclosed in a pleading or other document filed in

a proceeding under this [Act]. If a party alleges in

an affidavit or a pleading under oath that the

health, safety, or liberty of a party or child would

be jeopardized by disclosure of specific identifying

information, that information must be sealed and

may not be disclosed to the other party or the

public. After a hearing in which a tribunal takes

into consideration the health, safety, or liberty of

the party or child, the tribunal may order

disclosure of information that the tribunal

determines to be in the interest of justice.

B-3 Choice of Law/Service of Process

Section 201(c) of the UCCJEA states that personal jurisdiction over a particular person is notnecessary in order to enter a child custody determination. To effectuate this concept, theUCCJEA links when notice or joinder are required, and the effects of failure to join or notify, tothe laws and procedures applicable to intrastate cases. However, it recognizes that an orderentered without notice may not be enforceable against the person who did not receive thenotice. For the initial establishment of an order under § 205, the UCCJEA provides that themethod of service can be in accordance with the law of the forum or the location of thenonresident person. For enforcement of any custody determination, service must be inaccordance with the law of the enforcing state. § 309.

Needing to have all affected parties properly noticed, the UIFSA specifies simply that the law ofthe forum state applies to all aspects. To obtain valid service, it must be accomplished incompliance with the forum’s law. With respect to the establishment of the initial order or the

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modification of the tribunal’s own order, § 303 states the law of the forum will apply, but withexceptions. Those exceptions involve the modification or enforcement of another state’s order.

When enforcing another state’s order, basic choice of law concepts distinguish between the lawapplicable to substantive issues versus the law applicable to procedural aspects. Section 604of the UIFSA sets out in detail the resolution. One interesting choice is that the statute oflimitations of the order issuing or order enforcing forum, whichever is longer, applies. Clearly,the most vexing problem, particularly for the IV-D agencies, is interest. The collection ofinterest is a matter of substantive law; thus, linked to the law of the order issuing forum. Whenpursuing enforcement in another jurisdiction, the calculation can be problematic. The issue iscompounded when there are multiple orders contributing portions to the consolidated arrearsand is exacerbated when one jurisdiction modifies the order of another state. To give someclarity, the UIFSA 2001 provides that the law of the state whose order will govern prospectivesupport should apply to the interest to be applied not only on missed payments in the future butalso to the arrears.

UCCJEA UIFSA

SECTION 205. NOTICE; OPPORTUNITY TO BE

HEARD; JOINDER.

(a) Before a child-custody determination is made

under this [Act], notice and an opportunity to be

heard in accordance with the standards of Section

108 must be given to all persons entitled to notice

under the law of this State as in child-custody

proceedings between residents of this State, any

parent whose parental rights have not been

previously terminated, and any person having

physical custody of the child.

(b) This [Act] does not govern the enforceability

of a child-custody determination made without

notice or an opportunity to be heard.

(c) The obligation to join a party and the right to

intervene as a party in a child-custody proceeding

under this [Act] are governed by the law of this

State as in child-custody proceedings between

residents of this State.

SECTION 108. NOTICE TO PERSONS

OUTSIDE STATE.

(a) Notice required for the exercise of jurisdiction

when a person is outside this State may be given

in a manner prescribed by the law of this State for

service of process or by the law of the State in

which the service is made. Notice must be given

in a manner reasonably calculated to give actual

notice but may be by publication if other means

are not effective.

(b) Proof of service may be made in the manner

prescribed by the law of this State or by the law of

the State in which the service is made.

(c) Notice is not required for the exercise of

jurisdiction with respect to a person who submits

to the jurisdiction of the court.

SECTION 303. APPLICATION OF LAW OF

STATE.

Except as otherwise provided by in this [Act], a

responding tribunal of this State shall:

(1) shall apply the procedural and substantive law,

including the rules on choice of law, generally

applicable to similar proceedings originating in this

State and may exercise all powers and provide all

remedies available in those proceedings; and

(2) shall determine the duty of support and the

amount payable in accordance with the law and

support guidelines of this State.

SECTION 604. CHOICE OF LAW.

(a) The Except as otherwise provided in

subsection (d), the law of the issuing State

governs:

(1) the nature, extent, amount, and duration of

current payments and other obligations of support

and under a registered support order;

(2) the computation and payment of arrearages

and accrual of interest on the arrearages under

the support order; and

(3) the existence and satisfaction of other

obligations under the support order.

(b) In a proceeding for arrearages arrears under

a registered support order, the statute of limitation

under the laws of this State or of the issuing State,

whichever is longer, applies.

(c) A responding tribunal of this State shall apply

the procedures and remedies of this State to

enforce current support and collect arrears and

interest due on a support order of another State

registered in this State.

(d) After a tribunal of this or another State

determines which is the controlling order and

issues an order consolidating arrears, if any, a

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SECTION 309. SERVICE OF PETITION AND

ORDER. Except as otherwise provided in Section

311, the petition and order must be served, by any

method authorized [by the law of this State], upon

respondent and any person who has physical

custody of the child.

tribunal of this State shall prospectively apply the

law of the State issuing the controlling order,

including its law on interest on arrears, on current

and future support, and on consolidated arrears.

B-4 Evidence, Discovery, and Procedure

Some of the more significant provisions of both the UCCJEA and UIFSA are those that providefor use of technology in conducting hearings with parties and witnesses in places other than thehearing room.

Both Acts permit telephonic testimony and participation. However, there is a significantdifference regarding the compulsion to appear. The UCCJEA makes specific provisions thatenable a court to compel the appearance of a party with or without the child. This is appropriatesince the matter to be resolved involves custody of the particular child and having the physicalpresence of the parent with physical possession of the child at the hearing may increase theability to actually enforce the determination.

The UIFSA, especially in the 2001 version, takes the opposite approach in stating that physicalpresence is not required and telephonic testimony shall be used. Note that the language in theUIFSA should not be taken to mean physical presence is not required when the remedy soughtrequires it, i.e. when contempt is sought, the physical presence of the person is compelled toavoid a capias or arrest warrant being issued.

Recognizing the interstate aspects of the issues involved, both acts allow the admission ofdocuments and records without the requirement for production of the original. As use oftechnology and the internet increases, especially in child support cases, these Acts seek tomake both custody and support proceedings as “user friendly” as possible while still assuringthe due process and other rights of all parties.

Both Acts abolish any privilege or immunity deriving from the family relationship and theassertion of the right against self- incrimination can result in a negative inference.

The UIFSA contains a rather unique provision regarding the use of “standard forms”. Becauseof the substantial involvement of IV-D agencies in processing interstate support cases, thefederal Office of Child Support Enforcement (OCSE) was authorized to promulgate forms thatare routinely used. These include a General Testimony and Affidavit in Support of EstablishingPaternity. They serve the purpose of providing evidence in the absence of the nonresidentparty. There is nothing in the UIFSA that prohibits use by private practitioners and the formsare readily available from the OCSE website.

UCCJEA UIFSA

SECTION 111. TAKING TESTIMONY IN

ANOTHER STATE.

(a) In addition to other procedures available to a

party, a party to a child-custody proceeding may

offer testimony of witnesses who are located in

SECTION 316. SPECIAL RULES OF EVIDENCE

AND PROCEDURE.

(a) The physical presence of the [petitioner] a

nonresident party who is an individual in a

responding tribunal of this State is not required for

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another State, including testimony of the parties

and the child, by deposition or other means

allowable in this State for testimony taken in

another State. The court on its own motion may

order that the testimony of a person be taken in

another State and may prescribe the manner in

which and the terms upon which the testimony is

taken.

(b) A court of this State may permit an individual

residing in another State to be deposed or to

testify by telephone, audiovisual means, or other

electronic means before a designated court or at

another location in that State. A court of this State

shall cooperate with courts of other States in

designating an appropriate location for the

deposition or testimony.

(c) Documentary evidence transmitted from

another State to a court of this State by

technological means that do not produce an

original writing may not be excluded from

evidence on an objection based on the means of

transmission.

SECTION 210. APPEARANCE OF PARTIES

AND CHILD.

(a) In a child-custody proceeding in this State, the

court may order a party to the proceeding who is

in this State to appear before the court in person

with or without the child. The court may order any

person who is in this State and who has physical

custody or control of the child to appear in person

with the child.

(b) If a party to a child-custody proceeding whose

presence is desired by the court is outside this

State, the court may order that a notice given

pursuant to Section 108 include a statement

directing the party to appear in person with or

without the child and informing the party that

failure to appear may result in a decision adverse

to the party.

(c) The court may enter any orders necessary to

ensure the safety of the child and of any person

ordered to appear under this section.

(d) If a party to a child-custody proceeding who is

outside this State is directed to appear under

subsection (b) or desires to appear personally

before the court with or without the child, the court

may require another party to pay reasonable and

necessary travel and other expenses of the party

so appearing and of the child.

SECTION 310. HEARING AND ORDER.

(c) If a party called to testify refuses to answer on

the ground that the testimony may be self-

incriminating, the court may draw an adverse

inference from the refusal.

the establishment, enforcement, or modification of

a support order or the rendition of a judgment

determining parentage.

(b) A verified [petition], An affidavit, a document

substantially complying with federally mandated

forms, and or a document incorporated by

reference in any of them, which would not be

excluded under the hearsay rule if given in

person, is admissible in evidence if given under

oath penalty of perjury by a party or witness

residing in another State.

(c) A copy of the record of child-support

payments certified as a true copy of the original by

the custodian of the record may be forwarded to a

responding tribunal. The copy is evidence of facts

asserted in it, and is admissible to show whether

payments were made.

(d) Copies of bills for testing for parentage, and

for prenatal and postnatal health care of the

mother and child, furnished to the adverse party at

least [ten] days before trial, are admissible in

evidence to prove the amount of the charges

billed and that the charges were reasonable,

necessary, and customary.

(e) Documentary evidence transmitted from

another State to a tribunal of this State by

telephone, telecopier, or other means that do not

provide an original writing record may not be

excluded from evidence on an objection based on

the means of transmission.

(f) In a proceeding under this [Act], a tribunal of

this State may shall permit a party or witness

residing in another State to be deposed or to

testify under penalty of perjury by telephone,

audiovisual means, or other electronic means at a

designated tribunal or other location in that State.

A tribunal of this State shall cooperate with

tribunals of other States in designating an

appropriate location for the deposition or

testimony.

(g) If a party called to testify at a civil hearing

refuses to answer on the ground that the

testimony may be self-incriminating, the trier of

fact may draw an adverse inference from the

refusal.

(h) A privilege against disclosure of

communications between spouses does not apply

in a proceeding under this [Act].

(I) The defense of immunity based on the

relationship of husband and wife or parent and

child does not apply in a proceeding under this

[Act].

(j) A voluntary acknowledgment of paternity,

certified as a true copy, is admissible to establish

parentage of the child.

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(d) A privilege against disclosure of

communications between spouses and a defense

of immunity based on the relationship of husband

and wife or parent and child may not be invoked in

a proceeding under this [article].

SECTION 210. APPLICATION OF [ACT] TO

NONRESIDENT SUBJECT TO PERSONAL

JURISDICTION.

A tribunal of this State exercising personal

jurisdiction over a nonresident in a proceeding

under this [Act], under other law of this State

relating to a support order, or recognizing a

support order of a foreign country or political

subdivision on the basis of comity may receive

evidence from another State pursuant to Section

316, communicate with a tribunal of another State

pursuant to Section 317, and obtain discovery

through a tribunal of another State pursuant to

Section 318. In all other respects, Articles 3

through 7 do not apply and the tribunal shall apply

the procedural and substantive law of this State.

B-5 Communication between tribunals

To have a legal structure that is designed for situations where not all parties reside in the samestate, it is critical that tribunals in different states be able to communicate and assist each other. This is particularly true in custody and visitation disputes. Thus, in many situations under theUCCJEA, communication and co-ordination is required: § 204 - Temporary EmergencyJurisdiction, § 206 - Simultaneous Proceedings, and § 307 - Simultaneous Proceedings [see B-7].

Both acts go beyond basic communication and empower courts in one state to assist courts inother states with obtaining evidence. The UCCJEA contemplates another court can conducthearings and order evaluations even when it is not the forum where the issues will be resolved.

UCCJEA UIFSA

SECTION 110. COMMUNICATION BETWEEN

COURTS.

(a) A court of this State may communicate with a

court in another State concerning a proceeding

arising under this [Act].

(b) The court may allow the parties to participate

in the communication. If the parties are not able

to participate in the communication, they must be

given the opportunity to present facts and legal

arguments before a decision on jurisdiction is

made.

(c) Communication between courts on schedules,

calendars, court records, and similar matters may

occur without informing the parties. A record

need not be made of the communication.

(d) Except as otherwise provided in subsection

(c), a record must be made of a communication

under this section. The parties must be informed

promptly of the communication and granted

access to the record.

(e) For the purposes of this section, "record"

SECTION 317. COMMUNICATIONS BETWEEN

TRIBUNALS. A tribunal of this State may

communicate with a tribunal of another State or

foreign country or political subdivision in writing a

record, or by telephone or other means, to obtain

information concerning the laws of that State, the

legal effect of a judgment, decree, or order of that

tribunal, and the status of a proceeding in the

other State or foreign country or political

subdivision. A tribunal of this State may furnish

similar information by similar means to a tribunal

of another State or foreign country or political

subdivision.

SECTION 318. ASSISTANCE WITH

DISCOVERY.

A tribunal of this State may:

(1) request a tribunal of another State to assist in

obtaining discovery; and

(2) upon request, compel a person over whom it

has jurisdiction to respond to a discovery order

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means information that is inscribed on a tangible

medium or that is stored in an electronic or other

medium and is retrievable in perceivable form.

SECTION 112. COOPERATION BETWEEN

COURTS; PRESERVATION OF RECORDS.

(a) A court of this State may request the

appropriate court of another State to:

(1) hold an evidentiary hearing;

(2) order a person to produce or give evidence

pursuant to procedures of that State;

(3) order that an evaluation be made with

respect to the custody of a child involved in a

pending proceeding;

(4) forward to the court of this State a certified

copy of the transcript of the record of the hearing,

the evidence otherwise presented, and any

evaluation prepared in compliance with the

request; and

(5) order a party to a child-custody proceeding or

any person having physical custody of the child to

appear in the proceeding with or without the child.

(b) Upon request of a court of another State, a

court of this State may hold a hearing or enter an

order described in subsection (a).

. . .

(d) A court of this State shall preserve the

pleadings, orders, decrees, records of hearings,

evaluations, and other pertinent records with

respect to a child-custody proceeding until the

child attains 18 years of age. Upon appropriate

request by a court or law enforcement official of

another State, the court shall forward a certified

copy of those records.

issued by a tribunal of another State.

B-6 Immunity

Both Acts recognize the interplay of support and custody/visitation issues. All too frequently,one issue may be raised as a “defense” to the other. The UIFSA specifically states thatcustody and visitation issues should not be “linked” with the duty to pay support. Certainly,when one tribunal has both ECJ under the UCCJEA and CEJ under the UIFSA, it will be oneplace where both issues can be appropriately raised. The concern is when a tribunal withoutthe required subject matter jurisdiction tries to enter an order that is void. The drafters of theUIFSA were particularly concerned about the potential to “ambush” the party exercising avisitation right by filing a motion to modify support.

In addition to the substantive restrictions on where an existing order can be modified, both actsprovide a procedural “shield” so that a participant in a court action under that act is immunefrom most other civil process.

UCCJEA UIFSA

SECTION 109. APPEARANCE AND LIMITED SECTION 305. DUTIES AND POWERS OF

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IMMUNITY.

(a) A party to a child-custody proceeding,

including a modification proceeding, or a petitioner

or respondent in a proceeding to enforce or

register a child-custody determination, is not

subject to personal jurisdiction in this State for

another proceeding or purpose solely by reason of

having participated, or of having been physically

present for the purpose of participating, in the

proceeding.

(b) A person who is subject to personal

jurisdiction in this State on a basis other than

physical presence is not immune from service of

process in this State. A party present in this State

who is subject to the jurisdiction of another State

is not immune from service of process allowable

under the laws of that State.

(c) The immunity granted by subsection (a) does

not extend to civil litigation based on acts

unrelated to the participation in a proceeding

under this [Act] committed by an individual while

present in this State.

RESPONDING TRIBUNAL.

(d) A responding tribunal of this State may not

condition the payment of a support order issued

under this [Act] upon compliance by a party with

provisions for visitation.

SECTION 314. LIMITED IMMUNITY OF

[PETITIONER].

(a) Participation by a [petitioner] in a proceeding

under this [Act] before a responding tribunal,

whether in person, by private attorney, or through

services provided by the support enforcement

agency, does not confer personal jurisdiction over

the [petitioner] in another proceeding.

(b) A [petitioner] is not amenable to service of

civil process while physically present in this State

to participate in a proceeding under this [Act].

(c) The immunity granted by this section does not

extend to civil litigation based on acts unrelated to

a proceeding under this [Act] committed by a party

while physically present in this State to participate

in the proceeding.

B-7 Emergency and Simultaneous Proceedings/ “Clean Hands”

The paramount concern of both acts is to make determinations that are in the best interest ofthe children involved. While it is certainly important to provide for the support of a child (orspouse in appropriate situations), it is more important to provide the child with a safe and stablephysical environment. The UCCJA provides a structure that enables a court to enter temporary emergency orders when needed while acting consistently with the concept that there is to beone court with exclusive, continuing jurisdiction. The UIFSA has no such compelling need for asecond tribunal to enter a temporary emergency support order.

Given the emotional subject matter combined with the interstate aspect, a “race to thecourthouse” is a very real possibility under both the UCCJA and the UIFSA. The resolutionstaken by each act are slightly different. Under the UCCJEA, the simultaneous proceeding issueshould most often be moot as there will be only one “home state” at a time. Modifications arecompletely finessed by the ECJ concept. If there is no home state, no court with ECJ and bothcourts are in states with a “significant connection”; then, the first court to have the proceedingcommenced is the “winner”.

The UIFSA resolution takes a couple of additional steps. When a pleading is filed in the firststate, the second pleading must be filed in the second state within the time allowed for aresponsive pleading challenging the jurisdiction of the first state and an timely challenge mustbe made to the original filing. At that point, if the matter is purely one of subject matter orpersonal jurisdiction, it should be able to be resolved based upon prevailing law. Morecommonly, both states may have the requisite subject matter and personal jurisdiction. Inthose situations, the “home sate” of the child will be the “winner”. It should be noted that thisone time use of the “home state” concept in the UIFSA is based upon the same definition of“home state” which appears in and is used throughout the UCCJEA. The UIFSA section is alsolimited to only establishment actions in recognition that the CEJ concept precludessimultaneous filings for modification.

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In resolving both the potential need for temporary emergency orders and well as which courtprevails when simultaneous proceedings are filed, the UCCJEA imposes the requirement thatthe person seeking the relief not have engaged in “unjustifiable conduct” (more often describedas “having clean hands”). This same doctrine is applicable when resolving the InconvenientForum issue discussed in B-8. Such a person is also potentially subject to extensive costs andother remedies. [see B-9] There is no comparable provision in the UIFSA.

As mentioned in B-5, there is also the requirement under the UCCJEA that a court being askedto issue and emergency order or that becomes aware of simultaneous proceedings is tocommunicate with other appropriate courts to make the appropriate resolution. There is nocomparable requirement for tribunal communication under the UIFSA; however, there is also noprohibition . Ostensibly, the timing of the UIFSA related pleadings filed in the other state can beused to resolve the issue. Nevertheless, the tribunals in an action under the UIFSA may wantto communicate to assure the support issue is timely resolved by some tribunal.

UCCJEA UIFSA

SECTION 204. TEMPORARY EMERGENCY

JURISDICTION.

(a) A court of this State has temporary

emergency jurisdiction if the child is present in this

State and the child has been abandoned or it is

necessary in an emergency to protect the child

because the child, or a sibling or parent of the

child, is subjected to or threatened with

mistreatment or abuse.

(b) If there is no previous child-custody

determination that is entitled to be enforced under

this [Act] and a child-custody proceeding has not

been commenced in a court of a State having

jurisdiction under Sections 201 through 203, a

child-custody determination made under this

section remains in effect until an order is obtained

from a court of a State having jurisdiction under

Sections 201 through 203. If a child-custody

proceeding has not been or is not commenced in

a court of a State having jurisdiction under

Sections 201 through 203, a child-custody

determination made under this section becomes a

final determination, if it so provides and this State

becomes the home State of the child.

(c) If there is a previous child-custody

determination that is entitled to be enforced under

this [Act], or a child-custody proceeding has been

commenced in a court of a State having

jurisdiction under Sections 201 through 203, any

order issued by a court of this State under this

section must specify in the order a period that the

court considers adequate to allow the person

seeking an order to obtain an order from the State

having jurisdiction under Sections 201 through

203. The order issued in this State remains in

effect until an order is obtained from the other

State within the period specified or the period

expires.

SECTION 204. SIMULTANEOUS

PROCEEDINGS IN ANOTHER STATE.

(a) A tribunal of this State may exercise

jurisdiction to establish a support order if the

[petition] or comparable pleading is filed after a

pleading is filed in another State only if:

(1) the [petition] or comparable pleading in this

State is filed before the expiration of the time

allowed in the other State for filing a responsive

pleading challenging the exercise of jurisdiction by

the other State;

(2) the contesting party timely challenges the

exercise of jurisdiction in the other State; and

(3) if relevant, this State is the home State of the

child.

(b) A tribunal of this State may not exercise

jurisdiction to establish a support order if the

[petition] or comparable pleading is filed before a

[petition] or comparable pleading is filed in

another State if:

(1) the [petition] or comparable pleading in the

other State is filed before the expiration of the

time allowed in this State for filing a responsive

pleading challenging the exercise of jurisdiction by

this State;

(2) the contesting party timely challenges the

exercise of jurisdiction in this State; and

(3) if relevant, the other State is the home State of

the child.

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(d) A court of this State which has been asked to

make a child-custody determination under this

section, upon being informed that a child-custody

proceeding has been commenced in, or a child-

custody determination has been made by, a court

of a State having jurisdiction under Sections 201

through 203, shall immediately communicate with

the other court. A court of this State which is

exercising jurisdiction pursuant to Sections 201

through 203, upon being informed that a child-

custody proceeding has been commenced in, or a

child-custody determination has been made by, a

court of another State under a statute similar to

this section shall immediately communicate with

the court of that State to resolve the emergency,

protect the safety of the parties and the child, and

determine a period for the duration of the

temporary order.


PROCEEDINGS.


a court of this State may not exercise its

jurisdiction under this [article] if, at the time of the

commencement of the proceeding, a proceeding

concerning the custody of the child has been

commenced in a court of another State having

jurisdiction substantially in conformity with this

[Act], unless the proceeding has been terminated

or is stayed by the court of the other State

because a court of this State is a more convenient

forum under Section 207.

(b) Except as otherwise provided in Section 204,

a court of this State, before hearing a child-

custody proceeding, shall examine the court

documents and other information supplied by the

parties pursuant to Section 209. If the court

determines that a child-custody proceeding has

been commenced in a court in another State

having jurisdiction substantially in accordance with

this [Act], the court of this State shall stay its

proceeding and communicate with the court of the

other State. If the court of the State having

jurisdiction substantially in accordance with this

[Act] does not determine that the court of this

State is a more appropriate forum, the court of

this State shall dismiss the proceeding.

(c) In a proceeding to modify a child-custody

determination, a court of this State shall determine

whether a proceeding to enforce the

determination has been commenced in another

State. If a proceeding to enforce a child-custody

determination has been commenced in another

State, the court may:

(1) stay the proceeding for modification pending

the entry of an order of a court of the other State

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enforcing, staying, denying, or dismissing the

proceeding for enforcement;

(2) enjoin the parties from continuing with the

proceeding for enforcement; or

(3) proceed with the modification under

conditions it considers appropriate.

SECTION 208. JURISDICTION DECLINED BY

REASON OF CONDUCT.

(a) Except as otherwise provided in Section 204

[or by other law of this State], if a court of this

State has jurisdiction under this [Act] because a

person seeking to invoke its jurisdiction has

engaged in unjustifiable conduct, the court shall

decline to exercise its jurisdiction unless:

(1) the parents and all persons acting as parents

have acquiesced in the exercise of jurisdiction;

(2) a court of the State otherwise having

jurisdiction under Sections 201 through 203

determines that this State is a more appropriate

forum under Section 207; or

(3) no court of any other State would have

jurisdiction under the criteria specified in Sections

201 through 203.

(b) If a court of this State declines to exercise its

jurisdiction pursuant to subsection (a), it may

fashion an appropriate remedy to ensure the

safety of the child and prevent a repetition of the

unjustifiable conduct, including staying the

proceeding until a child-custody proceeding is

commenced in a court having jurisdiction under

Sections 201 through 203.

. . .

B-8 Inconvenient or Inappropriate Forum

The UCCJEA has several sections that establish when it is appropriate for a court to exerciseits jurisdiction. As discussed in B-7, resolution of the issue can also be affected by the “cleanhands” of a person seeking relief. Even if it is determined that the court is an appropriate forumand there is no compelling basis to refuse to assert jurisdiction, the court may still declinejurisdiction. While specific factors to consider are enumerated, the abiding concern is to havethe matter resolved in a forum with the best ability to obtain the information necessary whilealso considering the relative impact on the participants. One interesting consideration is (b)(5)with allows the parties to agree on a preferred jurisdiction. There appears to be no time limitsuch that the agreement could be made prior to the litigation.

The UIFSA makes no provision for an inconvenient forum. Presumably, the general concept offorum non conveniens would be applicable. What the UIFSA does provide is for one tribunal toforward documents to another tribunal when appropriate. This provision recognizes thedifficulty often faced by an obligee in trying to obtain a support remedy against a person whowill frequently move to intentionally avoid the process.

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UCCJEA UIFSA

SECTION 207. INCONVENIENT FORUM.

(a) A court of this State which has jurisdiction

under this [Act] to make a child-custody

determination may decline to exercise its

jurisdiction at any time if it determines that it is an

inconvenient forum under the circumstances and

that a court of another State is a more appropriate

forum. The issue of inconvenient forum may be

raised upon motion of a party, the court’s own

motion, or request of another court.

(b) Before determining whether it is an

inconvenient forum, a court of this State shall

consider whether it is appropriate for a court of

another State to exercise jurisdiction. For this

purpose, the court shall allow the parties to submit

information and shall consider all relevant factors,

including:

(1) whether domestic violence has occurred and

is likely to continue in the future and which State

could best protect the parties and the child;

(2) the length of time the child has resided

outside this State;

(3) the distance between the court in this State

and the court in the State that would assume

jurisdiction;

(4) the relative financial circumstances of the

parties;

(5) any agreement of the parties as to which

State should assume jurisdiction;

(6) the nature and location of the evidence

required to resolve the pending litigation, including

testimony of the child;

(7) the ability of the court of each State to decide

the issue expeditiously and the procedures

necessary to present the evidence; and

(8) the familiarity of the court of each State with

the facts and issues in the pending litigation.

(c) If a court of this State determines that it is an

inconvenient forum and that a court of another

State is a more appropriate forum, it shall stay the

proceedings upon condition that a child-custody

proceeding be promptly commenced in another

designated State and may impose any other

condition the court considers just and proper.

(d) A court of this State may decline to exercise

its jurisdiction under this [Act] if a child-custody

determination is incidental to an action for divorce

or another proceeding while still retaining

jurisdiction over the divorce or other proceeding.

SECTION 306. INAPPROPRIATE TRIBUNAL.

If a [petition] or comparable pleading is received

by an inappropriate tribunal of this State, it the

tribunal shall forward the pleading and

accompanying documents to an appropriate

tribunal in this State or another State and notify

the [petitioner] where and when the pleading was

sent.

B-9 Costs

It has been a requirement for interstate support cases since the promulgation of URESA in

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1950 that there be no filing fee assessed. Under URESA and RURESA, the provisionspecifically applied to fees assessed against an obligee. Recognizing that obligors may alsoutilize the UIFSA, it provides for no filing fees from the petitioner. While usually considered inthe context of a nonresident party seeking relief, the section could be read as applying when aresident files the petition seeking relief against a nonresident. When it comes to enforcementunder the UIFSA, it allows costs to be assessed against the obligor if the obligee prevails withno corresponding assessment if the obligor prevails.

The UCCJEA has the more balanced approach. Although stated in different ways, theUCCJEA provides that the “winner” recover costs from the “loser”.

Neither act can serve as the legal basis for imposition of costs against a state agency involvedin the case although other state law’s may allow for the assessment.

UCCJEA UIFSA

SECTION 112. COOPERATION BETWEEN

COURTS; PRESERVATION OF RECORDS.

(c) Travel and other necessary and reasonable

expenses incurred under subsections (a) and (b)

may be assessed against the parties according to

the law of this State.

SECTION 208. JURISDICTION DECLINED BY

REASON OF CONDUCT.

(c) If a court dismisses a petition or stays a

proceeding because it declines to exercise its

jurisdiction pursuant to subsection (a), it shall

assess against the party seeking to invoke its

jurisdiction necessary and reasonable expenses

including costs, communication expenses,

attorney’s fees, investigative fees, expenses for

witnesses, travel expenses, and child care during

the course of the proceedings, unless the party

from whom fees are sought establishes that the

assessment would be clearly inappropriate. The

court may not assess fees, costs, or expenses

against this State unless authorized by law other

than this [Act].

Article 3 - Enforcement


(b) The court shall award the fees, costs, and

expenses authorized under Section 312 and may

grant additional relief, including a request for the

assistance of [law enforcement officials], and set

a further hearing to determine whether additional

relief is appropriate.

SECTION 312. COSTS, FEES, AND

EXPENSES.

(a) The court shall award the prevailing party,

including a State, necessary and reasonable

expenses incurred by or on behalf of the party,

including costs, communication expenses,

SECTION 313. COSTS AND FEES.

(a) The [petitioner] may not be required to pay a

filing fee or other costs.

(b) If an obligee prevails, a responding tribunal

may assess against an obligor filing fees,

reasonable attorney’s fees, other costs, and

necessary travel and other reasonable expenses

incurred by the obligee and the obligee’s

witnesses. The tribunal may not assess fees,

costs, or expenses against the obligee or the

support enforcement agency of either the initiating

or the responding State, except as provided by

other law. Attorney’s fees may be taxed as costs,

and may be ordered paid directly to the attorney,

who may enforce the order in the attorney’s own

name. Payment of support owed to the obligee

has priority over fees, costs and expenses.

(c) The tribunal shall order the payment of costs

and reasonable attorney’s fees if it determines

that a hearing was requested primarily for delay.

In a proceeding under Article 6 (Enforcement and

Modification of Support Order After Registration),

a hearing is presumed to have been requested

primarily for delay if a registered support order is

confirmed or enforced without change.

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attorney’s fees, investigative fees, expenses for

witnesses, travel expenses, and child care during

the course of the proceedings, unless the party

from whom fees or expenses are sought

establishes that the award would be clearly

inappropriate.

(b) The court may not assess fees, costs, or

expenses against a State unless authorized by

law other than this [Act].

SECTION 317. COSTS AND EXPENSES.

If the respondent is not the prevailing party, the

court may assess against the respondent all direct

expenses and costs incurred by the [prosecutor or

other appropriate public official] and [law

enforcement officers] under Section 315 or 316.

317

Part C - Going Interstate

C-1 Registration

When an action is taken regarding an order issued by a tribunal in one state, a procedure isneeded to bring the order to the attention of the tribunal in another state. Classically, the takingof judicial notice under the second state’s Rules of Evidence is the process. However, both theUCCJEA and the UIFSA established a “registration” process. Except for some difference in theinformation to be contained in the respective documents, the procedures for registration arebasically the same:

A. The proponent of the order requests the Clerk of the appropriate court or tribunalissue a Notice of RegistrationB. The Notice of Registration asserts the validity of the order (and includes acalculation of arrears under the UIFSA) and puts the nonregistering party on notice thatthe nonregistering party must contest the assertions regarding the validity of the order(and the arrears)C. Failure of the nonregistering party to contest results in confirmation of the validity ofthe order (and the arrears) by operation of law.D. If contested, there are limited defenses.

The major change wrought by the Registration process is a shifting of the burden to obtainconfirmation of the order (and arrears).

The Registration process is made explicit in the UIFSA for either enforcement or modificationactions. While explicit only for enforcement under the UCCJEA, it should be considered aviable procedure regarding modifications as well.

Actions for support can often involve the enforcement of several orders issued by differenttribunals over time. The procedure for this in the UIFSA 96 was an implicit registration of eachorder. Under the UIFSA 2001, only the alleged “controlling” order for prospective support isactually registered along with an assertion of the consolidated arrears. Failure to contest eitherthe controlling order assertion or the consolidated arrears amount results in confirmation byoperation of law. For a greater discussion of the multiple order issues, see D-3.

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UCCJEA UIFSA

SECTION 305. REGISTRATION OF CHILD-

CUSTODY DETERMINATION.

(a) A child-custody determination issued by a

court of another State may be registered in this

State, with or without a simultaneous request for

enforcement, by sending to [the appropriate court]

in this State:

(1) a letter or other document requesting

registration;

(2) two copies, including one certified copy, of

the determination sought to be registered, and a

statement under penalty of perjury that to the best

of the knowledge and belief of the person seeking

registration the order has not been modified; and

(3) except as otherwise provided in Section 209,

the name and address of the person seeking

registration and any parent or person acting as a

parent who has been awarded custody or

visitation in the child-custody determination sought

to be registered.

(b) On receipt of the documents required by

subsection (a), the registering court shall:

(1) cause the determination to be filed as a

foreign judgment, together with one copy of any

accompanying documents and information,

regardless of their form; and

(2) serve notice upon the persons named

pursuant to subsection (a)(3) and provide them

with an opportunity to contest the registration in

accordance with this section.

(c) The notice required by subsection (b)(2) must

state that:

(1) a registered determination is enforceable as

of the date of the registration in the same manner

as a determination issued by a court of this State;

(2) a hearing to contest the validity of the

registered determination must be requested within

20 days after service of notice; and

(3) failure to contest the registration will result in

confirmation of the child-custody determination

and preclude further contest of that determination

with respect to any matter that could have been

asserted.

(d) A person seeking to contest the validity of a

registered order must request a hearing within 20

days after service of the notice. At that hearing,

the court shall confirm the registered order unless

the person contesting registration establishes that:

(1) the issuing court did not have jurisdiction

under [Article] 2;

(2) the child-custody determination sought to be

registered has been vacated, stayed, or modified

by a court having jurisdiction to do so under

[Article] 2; or

SECTION 601. REGISTRATION OF ORDER

FOR ENFORCEMENT.

A support order or an income-withholding order

issued by a tribunal of another State may be

registered in this State for enforcement.

SECTION 602. PROCEDURE TO REGISTER

ORDER FOR ENFORCEMENT.

(a) A support order or income-withholding order

of another State may be registered in this State by

sending the following documents records and

information to the [appropriate tribunal] in this

State:

(1) a letter of transmittal to the tribunal

requesting registration and enforcement;

(2) two copies, including one certified copy, of all

orders the order to be registered, including any

modification of an the order;

(3) a sworn statement by the party seeking

person requesting registration or a certified

statement by the custodian of the records showing

the amount of any arrearage;

(4) the name of the obligor and, if known:

(A) the obligor’s address and social security

number;

(B) the name and address of the obligor’s

employer and any other source of income of the

obligor; and

(C) a description and the location of property of

the obligor in this State not exempt from

execution; and

(5) except as otherwise provided in Section 312,

the name and address of the obligee and, if

applicable, the agency or person to whom support

payments are to be remitted.

(b) On receipt of a request for registration, the

registering tribunal shall cause the order to be

filed as a foreign judgment, together with one

copy of the documents and information,

regardless of their form.

(c) A [petition] or comparable pleading seeking a

remedy that must be affirmatively sought under

other law of this State may be filed at the same

time as the request for registration or later. The

pleading must specify the grounds for the remedy

sought.

(d) If two or more orders are in effect, the person

requesting registration shall:

(1) furnish to the tribunal a copy of every support

order asserted to be in effect in addition to the

documents specified in this section;

(2) specify the order alleged to be the controlling

order, if any; and

(3) specify the amount of consolidated arrears, if

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(3) the person contesting registration was

entitled to notice, but notice was not given in

accordance with the standards of Section 108, in

the proceedings before the court that issued the

order for which registration is sought.

(e) If a timely request for a hearing to contest the

validity of the registration is not made, the

registration is confirmed as a matter of law and

the person requesting registration and all persons

served must be notified of the confirmation.

(f) Confirmation of a registered order, whether by

operation of law or after notice and hearing,

precludes further contest of the order with respect

to any matter that could have been asserted at the

time of registration.

SECTION 306. ENFORCEMENT OF

REGISTERED DETERMINATION.

(a) A court of this State may grant any relief

normally available under the law of this State to

enforce a registered child-custody determination

made by a court of another State.

(b) A court of this State shall recognize and

enforce, but may not modify, except in

accordance with [Article] 2, a registered child-

custody determination of a court of another State

any.

(e) A request for a determination of which is the

controlling order may be filed separately or with a

request for registration and enforcement or for

registration and modification. The person

requesting registration shall give notice of the

request to each party whose rights may be

affected by the determination.

SECTION 603. EFFECT OF REGISTRATION

FOR ENFORCEMENT.

(a) A support order or income-withholding order

issued in another State is registered when the

order is filed in the registering tribunal of this

State.

(b) A registered order issued in another State is

enforceable in the same manner and is subject to

the same procedures as an order issued by a

tribunal of this State.

(c) Except as otherwise provided in this article, a

tribunal of this State shall recognize and enforce,

but may not modify, a registered order if the

issuing tribunal had jurisdiction.

SECTION 605. NOTICE OF REGISTRATION OF

ORDER.

(a) W hen a support order or income-withholding

order issued in another State is registered, the

registering tribunal shall notify the nonregistering

party. The notice must be accompanied by a copy

of the registered order and the documents and

relevant information accompanying the order.

(b) The A notice must inform the nonregistering

party:

(1) that a registered order is enforceable as of

the date of registration in the same manner as an

order issued by a tribunal of this State;

(2) that a hearing to contest the validity or

enforcement of the registered order must be

requested within [20] days after notice;

(3) that failure to contest the validity or

enforcement of the registered order in a timely

manner will result in confirmation of the order and

enforcement of the order and the alleged

arrearages; and

(4) of the amount of any alleged arrearages.

(c) If the registering party asserts that two or

more orders are in effect, a notice must also:

(1) identify the two or more orders and the order

alleged by the registering person to be the

controlling order and the consolidated arrears, if

any;

(2) notify the nonregistering party of the right to a

determination of which is the controlling order;

(3) state that the procedures provided in

subsection (b) apply to the determination of which

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is the controlling order; and

(4) state that failure to contest the validity or

enforcement of the order alleged to be the

controlling order in a timely manner may result in

confirmation that the order is the controlling order.

(d) Upon registration of an income-withholding

order for enforcement, the registering tribunal

shall notify the obligor’s employer pursuant to [the

income-withholding law of this State].

SECTION 606. PROCEDURE TO CONTEST

VALIDITY OR ENFORCEMENT OF

REGISTERED ORDER.

(a) A nonregistering party seeking to contest the

validity or enforcement of a registered order in this

State shall request a hearing within [20] days after

notice of the registration. The nonregistering party

may seek to vacate the registration, to assert any

defense to an allegation of noncompliance with

the registered order, or to contest the remedies

being sought or the amount of any alleged

arrearages pursuant to Section 607 (Contest of

Registration or Enforcement).

(b) If the nonregistering party fails to contest the

validity or enforcement of the registered order in a

timely manner, the order is confirmed by operation

of law.

(c) If a nonregistering party requests a hearing to

contest the validity or enforcement of the

registered order, the registering tribunal shall

schedule the matter for hearing and give notice to

the parties of the date, time, and place of the

hearing.

SECTION 607. CONTEST OF REGISTRATION

OR ENFORCEMENT.

(a) A party contesting the validity or enforcement

of a registered order or seeking to vacate the

registration has the burden of proving one or more

of the following defenses:

(1) the issuing tribunal lacked personal

jurisdiction over the contesting party;

(2) the order was obtained by fraud;

(3) the order has been vacated, suspended, or

modified by a later order;

(4) the issuing tribunal has stayed the order

pending appeal;

(5) there is a defense under the law of this State

to the remedy sought;

(6) full or partial payment has been made; or

(7) the statute of limitation under Section 604

(Choice of Law) precludes enforcement of some

or all of the alleged arrearages; or

(8) the alleged controlling order is not the

controlling order.

(b) If a party presents evidence establishing a full

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or partial defense under subsection (a), a tribunal

may stay enforcement of the registered order,

continue the proceeding to permit production of

additional relevant evidence, and issue other

appropriate orders. An uncontested portion of the

registered order may be enforced by all remedies

available under the law of this State.

(c) If the contesting party does not establish a

defense under subsection (a) to the validity or

enforcement of the order, the registering tribunal

shall issue an order confirming the order.

SECTION 608. CONFIRMED ORDER.

Confirmation of a registered order, whether by

operation of law or after notice and hearing,

precludes further contest of the order with respect

to any matter that could have been asserted at the

time of registration.

SECTION 609. PROCEDURE TO REGISTER

CHILD-SUPPORT ORDER OF ANOTHER

STATE FOR MODIFICATION.

A party or support enforcement agency seeking to

modify, or to modify and enforce, a child-support

order issued in another State shall register that

order in this State in the same manner provided in

Part 1 if the order has not been registered. A

[petition] for modification may be filed at the same

time as a request for registration, or later. The

pleading must specify the grounds for

modification.

SECTION 610. EFFECT OF REGISTRATION

FOR MODIFICATION.

A tribunal of this State may enforce a

child-support order of another State registered for

purposes of modification, in the same manner as

if the order had been issued by a tribunal of this

State, but the registered order may be modified

only if the requirements of Section 611, 613, or

615 (Modification of Child Support Order of

Another State) have been met.

C-2 Assuming Modification Jurisdiction

Both the ECJ and CEJ concepts have the exclusive jurisdiction to modify remain with theissuing state so long as one of the parties (parent per UCCJEA; obligor/obligee per UIFSA) orthe child continues to reside in the order issuing state. However, since both acts are focusedupon situations where not all family members reside in the same state, provisions are made forthe assumption (“transfer”) of jurisdiction to modify.

Under general “transfer” provisions, transfer is sought by returning to the original tribunal for anorder transferring the case from that tribunal to another tribunal. The UCCJEA retains thisreturn to the original court approach in the situation where either all family members have left

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the state or not all members have left but there is a “more convenient” forum. UIFSA does notvest the original tribunal with the ability to transfer the case to a tribunal in another state basedon the “more convenient” concept.

The major change to “moving” jurisdiction in both the UCCJEA and the UIFSA is when all familymembers have left the original order issuing state. The tribunal where one on the partiesresides is empowered, under certain circumstances, to “assume” jurisdiction. Under theUCCJEA, the assumption would be most often by a court in the child’s “home state”. Under theUIFSA, the party seeking the support modification has to have modification jurisdictionassumed by the tribunal where the other party resides. When all parties have left the originaljurisdiction and the assumption action is taken by the tribunal in the successor jurisdiction, the“losing” tribunal has no authority to stop the assumption.

There is one significant change to the movement of jurisdiction that has occurred under theUIFSA. The general principle is that subject matter jurisdiction can not be conferred upon atribunal by agreement. The original version of the UIFSA created an exception by allowing theparties to agree for the jurisdiction where the child currently resides or that has personaljurisdiction over one of the parties to assume CEJ even though someone remained in theoriginal order issuing state. This “choice of forum” capability was expanded by UIFSA 2001 toallow the parties to agree the issuing forum retains jurisdiction even when all parties have leftthat state. See § 205(a)(2) in A-3.

Upon assuming jurisdiction to modify, there is an important limitation under the UIFSA to thetribunal’s powers. The assuming tribunal is to apply its support guidelines in determining theamount of prospective support. However, the tribunal is not empowered to modify the durationof the support obligation.

UCCJEA UIFSA


(11) “Modification” means a child-custody

determination that changes, replaces,

supersedes, or is otherwise made after a previous

determination concerning the same child, whether

or not it is made by the court that made the

previous determination.

SECTION 203. JURISDICTION TO MODIFY

DETERMINATION.

Except as otherwise provided in Section 204, a

court of this State may not modify a child-custody

determination made by a court of another State

unless a court of this State has jurisdiction to

make an initial determination under Section

201(a)(1) or (2) and:

(1) the court of the other State determines it no

longer has exclusive, continuing jurisdiction under

Section 202 or that a court of this State would be

a more convenient forum under Section 207; or

(2) a court of this State or a court of the other

State determines that the child, the child’s

parents, and any person acting as a parent do not

presently reside in the other State.

SECTION 611. MODIFICATION OF


STATE.

(a) After If Section 613 does not apply, except as

otherwise provided in Section 615, upon [petition]

a tribunal of this State may modify a child-support

order issued in another State has been which is

registered in this State, the responding] tribunal of

this State may modify that order only if Section

613 does not apply and if, after notice and hearing

it, the tribunal finds that:

(1) the following requirements are met:

(A) neither the child, nor the individual obligee

who is an individual, and nor the obligor do not

resides in the issuing State;

(B) a [petitioner] who is a nonresident of this

State seeks modification; and

(C) the [respondent] is subject to the personal

jurisdiction of the tribunal of this State; or

(2) this State is the State of residence of the

child, or a party who is an individual is subject to

the personal jurisdiction of the tribunal of this

State, and all of the parties who are individuals

have filed a written consents in a record in the

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issuing tribunal for a tribunal of this State to

modify the support order and assume continuing,

exclusive jurisdiction over the order. However, if

the issuing State is a foreign jurisdiction that has

not enacted a law or established procedures

substantially similar to the procedures under this

[Act], the consent otherwise required of an

individual residing in this State is not required for

the tribunal to assume jurisdiction to modify the

child-support law.

(b) Modification of a registered child-support

order is subject to the same requirements,

procedures, and defenses that apply to the

modification of an order issued by a tribunal of this

State and the order may be enforced and satisfied

in the same manner.

(c) A Except as otherwise provided in Section

615, a tribunal of this State may not modify any

aspect of a child-support order that may not be

modified under the law of the issuing State,

including the duration of the obligation of support.

If two or more tribunals have issued child-support

orders for the same obligor and same child, the

order that controls and must be so recognized

under Section 207 establishes the aspects of the

support order which are nonmodifiable.

(d) In a proceeding to modify a child-support

order, the law of the State that is determined to

have issued the initial controlling order governs

the duration of the obligation of support. The

obligor’s fulfillment of the duty of support

established by that order precludes imposition of a

further obligation of support by a tribunal of this

State.

(e) On the issuance of an order by a tribunal of

this State modifying a child-support order issued

in another State, a the tribunal of this State

becomes the tribunal having continuing, exclusive

jurisdiction.



STATE WHEN INDIVIDUAL PARTIES RESIDE

IN THIS STATE.

(a) If all of the parties who are individuals reside

in this State and the child does not reside in the

issuing State, a tribunal of this State has

jurisdiction to enforce and to modify the issuing

State’s child-support order in a proceeding to

register that order.

(b) A tribunal of this State exercising jurisdiction

under this section shall apply the provisions of

Articles 1 and 2, this article, and the procedural

and substantive law of this State to the proceeding

for enforcement or modification. Articles 3, 4, 5, 7,

and 8 do not apply.

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C-3 Enforcement

With respect to enforcing an existing order, the differences between the UCCJEA and theUIFSA are based on the ultimate goal of each. When custody or visitation issues are involved,the focus of the court is getting the child into the appropriate physical possession. Thus, theemphasis for the UCCJEA is orders granting possession with the ability to issue warrants totake physical custody of the child. To prevent a person who is in wrongful possession of thechild from getting a favorable, “home town” order, courts in one state are to give full faith andcredit to enforcement orders entered by another state. In appropriate circumstances, theenforcing court does have the ability to enter emergency orders. See B-7.

The enforcement objective under the UIFSA is for the obligor to pay the current and backsupport owed. To effectuate that goal, the tribunal is given a panoply of remedies. In situationswhere the obligor is charged with criminal non-support, the governor of the charging state canseek the extradition of the obligor from the state where the obligor currently resides.

UCCJEA UIFSA

SECTION 303. DUTY TO ENFORCE.

(a) A court of this State shall recognize and

enforce a child-custody determination of a court of

another State if the latter court exercised

jurisdiction in substantial conformity with this [Act]

or the determination was made under factual

circumstances meeting the jurisdictional

standards of this [Act] and the determination has

not been modified in accordance with this [Act].

(b) A court of this State may utilize any remedy

available under other law of this State to enforce a

child-custody determination made by a court of

another State. The remedies provided in this

[article] are cumulative and do not affect the

availability of other remedies to enforce a child-

custody determination.


PROCEEDINGS. If a proceeding for enforcement

under this [article] is commenced in a court of this

State and the court determines that a proceeding

to modify the determination is pending in a court

of another State having jurisdiction to modify the

determination under [Article] 2, the enforcing court

shall immediately communicate with the modifying

court. The proceeding for enforcement continues

unless the enforcing court, after consultation with

the modifying court, stays or dismisses the

proceeding.

SECTION 308. EXPEDITED ENFORCEMENT

OF CHILD-CUSTODY DETERMINATION.

(a) A petition under this [article] must be verified.

Certified copies of all orders sought to be

enforced and of any order confirming registration

must be attached to the petition. A copy of a

SECTION 305. DUTIES AND POWERS OF

RESPONDING TRIBUNAL.

(a) W hen a responding tribunal of this State

receives a [petition] or comparable pleading from

an initiating tribunal or directly pursuant to Section

301(b)(c) (Proceedings Under this [Act]), it shall

cause the [petition] or pleading to be filed and

notify the [petitioner] where and when it was filed.

(b) A responding tribunal of this State, to the

extent otherwise authorized not prohibited by

other law, may do one or more of the following:

(1) issue or enforce a support order, modify a

child-support order, determine the controlling

child-support order, or render a judgment to

determine parentage;

(2) order an obligor to comply with a support

order, specifying the amount and the manner of

compliance;

(3) order income withholding;

(4) determine the amount of any arrearages, and

specify a method of payment;

(5) enforce orders by civil or criminal contempt,

or both;

(6) set aside property for satisfaction of the

support order;

(7) place liens and order execution on the

obligor’s property;

(8) order an obligor to keep the tribunal informed

of the obligor’s current residential address,

telephone number, employer, address of

employment, and telephone number at the place

of employment;

(9) issue a [bench warrant; capias] for an obligor

who has failed after proper notice to appear at a

hearing ordered by the tribunal and enter the

[bench warrant; capias] in any local and State

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certified copy of an order may be attached instead

of the original.

(b) A petition for enforcement of a child-custody

determination must state:

(1) whether the court that issued the

determination identified the jurisdictional basis it

relied upon in exercising jurisdiction and, if so,

what the basis was;

(2) whether the determination for which

enforcement is sought has been vacated, stayed,

or modified by a court whose decision must be

enforced under this [Act] and, if so, identify the

court, the case number, and the nature of the

proceeding;

(3) whether any proceeding has been

commenced that could affect the current

proceeding, including proceedings relating to

domestic violence, protective orders, termination

of parental rights, and adoptions and, if so, identify

the court, the case number, and the nature of the

proceeding;

(4) the present physical address of the child and

the respondent, if known;

(5) whether relief in addition to the immediate

physical custody of the child and attorney’s fees is

sought, including a request for assistance from

[law enforcement officials] and, if so, the relief

sought; and

(6) if the child-custody determination has been

registered and confirmed under Section 305, the

date and place of registration.

(c) Upon the filing of a petition, the court shall

issue an order directing the respondent to appear

in person with or without the child at a hearing and

may enter any order necessary to ensure the

safety of the parties and the child. The hearing

must be held on the next judicial day after service

of the order unless that date is impossible. In that

event, the court shall hold the hearing on the first

judicial day possible. The court may extend the

date of hearing at the request of the petitioner.

(d) An order issued under subsection (c) must

state the time and place of the hearing and advise

the respondent that at the hearing the court will

order that the petitioner may take immediate

physical custody of the child and the payment of

fees, costs, and expenses under Section 312, and

may schedule a hearing to determine whether

further relief is appropriate, unless the respondent

appears and establishes that:

(1) the child-custody determination has not been

registered and confirmed under Section 305 and

that:

(A) the issuing court did not have jurisdiction

under [Article] 2;

(B) the child-custody determination for which

computer systems for criminal warrants;

(10) order the obligor to seek appropriate

employment by specified methods;

(11) award reasonable attorney’s fees and other

fees and costs; and

(12) grant any other available remedy.

(c) A responding tribunal of this State shall

include in a support order issued under this [Act],

or in the documents accompanying the order, the

calculations on which the support order is based.

. . .

(e) If a responding tribunal of this State issues an

order under this [Act], the tribunal shall send a

copy of the order to the [petitioner] and the

[respondent] and to the initiating tribunal, if any.

(f) If requested to enforce a support order,

arrears, or judgment or modify a support order

stated in a foreign currency, a responding tribunal

of this State shall convert the amount stated in the

foreign currency to the equivalent amount in

dollars under the applicable official or market

exchange rate as publicly reported.

SECTION 801. GROUNDS FOR RENDITION.

(a) For purposes of this article, “governor”

includes an individual performing the functions of

governor or the executive authority of a State

covered by this [Act].

(b) The governor of this State may:

(1) demand that the governor of another State

surrender an individual found in the other State

who is charged criminally in this State with having

failed to provide for the support of an obligee; or

(2) on the demand by of the governor of another

State, surrender an individual found in this State

who is charged criminally in the other State with

having failed to provide for the support of an

obligee.

(c) A provision for extradition of individuals not

inconsistent with this [Act] applies to the demand

even if the individual whose surrender is

demanded was not in the demanding State when

the crime was allegedly committed and has not

fled therefrom.

SECTION 802. CONDITIONS OF RENDITION.

(a) Before making a demand that the governor of

another State surrender an individual charged

criminally in this State with having failed to provide

for the support of an obligee, the governor of this

State may require a prosecutor of this State to

demonstrate that at least [60] days previously the

obligee had initiated proceedings for support

pursuant to this [Act] or that the proceeding would

be of no avail.

(b) If, under this [Act] or a law substantially

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or modified by a court having jurisdiction to do so

under [Article] 2;

(C) the respondent was entitled to notice, but

notice was not given in accordance with the

standards of Section 108, in the proceedings

before the court that issued the order for which

enforcement is sought; or

(2) the child-custody determination for which

enforcement is sought was registered and

confirmed under Section 304, but has been

vacated, stayed, or modified by a court of a State

having jurisdiction to do so under [Article] 2.


(a) Unless the court issues a temporary

emergency order pursuant to Section 204, upon a

finding that a petitioner is entitled to immediate

physical custody of the child, the court shall order

that the petitioner may take immediate physical

custody of the child unless the respondent

establishes that:

(1) the child-custody determination has not been

registered and confirmed under Section 305 and

that:

(A) the issuing court did not have jurisdiction

under [Article] 2;

(B) the child-custody determination for which


or modified by a court of a State having

jurisdiction to do so under [Article] 2; or

(C) the respondent was entitled to notice, but

notice was not given in accordance with the

standards of Section 108, in the proceedings

before the court that issued the order for which

enforcement is sought; or

(2) the child-custody determination for which

enforcement is sought was registered and

confirmed under Section 305 but has been

vacated, stayed, or modified by a court of a State

having jurisdiction to do so under [Article] 2.

. . .

SECTION 311. WARRANT TO TAKE

PHYSICAL CUSTODY OF CHILD.

(a) Upon the filing of a petition seeking

enforcement of a child-custody determination, the

petitioner may file a verified application for the

issuance of a warrant to take physical custody of

the child if the child is immediately likely to suffer

serious physical harm or be removed from this

State.

(b) If the court, upon the testimony of the

petitioner or other witness, finds that the child is

imminently likely to suffer serious physical harm

or be removed from this State, it may issue a

similar to this [Act], the Uniform Reciprocal

Enforcement of Support Act, or the Revised

Uniform Reciprocal Enforcement of Support Act

the governor of another State makes a demand

that the governor of this State surrender an

individual charged criminally in that State with

having failed to provide for the support of a child

or other individual to whom a duty of support is

owed, the governor may require a prosecutor to

investigate the demand and report whether a

proceeding for support has been initiated or would

be effective. If it appears that a proceeding would

be effective but has not been initiated, the

governor may delay honoring the demand for a

reasonable time to permit the initiation of a

proceeding.

(c) If a proceeding for support has been initiated

and the individual whose rendition is demanded

prevails, the governor may decline to honor the

demand. If the [petitioner] prevails and the

individual whose rendition is demanded is subject

to a support order, the governor may decline to

honor the demand if the individual is complying

with the support order

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warrant to take physical custody of the child. The

petition must be heard on the next judicial day

after the warrant is executed unless that date is

impossible. In that event, the court shall hold the

hearing on the first judicial day possible. The

application for the warrant must include the

statements required by Section 308(b).

(c) A warrant to take physical custody of a child

must:

(1) recite the facts upon which a conclusion of

imminent serious physical harm or removal from

the jurisdiction is based;

(2) direct law enforcement officers to take

physical custody of the child immediately; and

(3) provide for the placement of the child pending

final relief.

(d) The respondent must be served with the

petition, warrant, and order immediately after the

child is taken into physical custody.

(e) A warrant to take physical custody of a child is

enforceable throughout this State. If the court

finds on the basis of the testimony of the petitioner

or other witness that a less intrusive remedy is not

effective, it may authorize law enforcement

officers to enter private property to take physical

custody of the child. If required by exigent

circumstances of the case, the court may

authorize law enforcement officers to make a

forcible entry at any hour.

(f) The court may impose conditions upon

placement of a child to ensure the appearance of

the child and the child’s custodian.

SECTION 313. RECOGNITION AND

ENFORCEMENT.

A court of this State shall accord full faith and

credit to an order issued by another State and

consistent with this [Act] which enforces a child-

custody determination by a court of another State

unless the order has been vacated, stayed, or

modified by a court having jurisdiction to do so

under [Article] 2.

C-4 Agency Involvement

The drafters of both acts recognized a major impediment to processing interstate cases is theinability of the nonresident person to obtain legal services in the state where an action needs tobe taken. Thus, both Acts build upon common structures in each state for obtaining necessaryservices.

Under the UCCJEA, agency involvement does not occur until an order is being enforced. Atthat point, a local prosecutor or some other public official is permitted (“may”) to assist in theenforcement of the order. And, as expected, law enforcement personnel in the enforcing statemay be called upon for assistance.

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The UIFSA inherits the IV-D agency structure. Pursuant to federal regulations, each state hasa “state information agency”, often referred to as the “central registry”. Compatible with theseregulations, the UIFSA empowers this information agency to provide information and receiveand process documents. It then applies the same duties in an interstate case to the “supportenforcement agency” that provides services in intrastate cases. Lastly, it designates a publicofficial to oversee and assure both the state information agency and state enforcement agencyperform their respective duties and functions.

An issue that has raised concerns, particularly in the IV-D community, is the legal relationshipbetween attorneys employed by the IV-D agency and the individual who is being providedservices. Most often, the attorneys may be providing services to someone they have nevermet. Like prosecutors, the IV-D agency attorneys are employed by their respective agency andsometimes the agency may have a position different from that of the person receiving services. Acknowledging the situation, both the UCCJEA and the UIFSA specifically provide that agencyor government attorneys do no have an attorney-client relationship with the person receivingservices under either Act.

Because of the availability of numerous support enforcement remedies that are automated(lottery, unemployment benefits, and tax intercepts; passport denial), the support enforcementagencies are empowered to begin these actions without the necessity of registering anotherstate’s order. It is only when the enforcement action is contested that registration is necessary. In many instances, the contest can even be resolved without the necessity for registration.

UCCJEA UIFSA

SECTION 315. ROLE OF [PROSECUTOR OR

PUBLIC OFFICIAL].

(a) In a case arising under this [Act] or involving

the Hague Convention on the Civil Aspects of

International Child Abduction, the [prosecutor or

other appropriate public official] may take any

lawful action, including resort to a proceeding

under this [article] or any other available civil

proceeding to locate a child, obtain the return of a

child, or enforce a child-custody determination if

there is:

(1) an existing child-custody determination;

(2) a request to do so from a court in a pending

child-custody proceeding;

(3) a reasonable belief that a criminal statute has

been violated; or

(4) a reasonable belief that the child has been

wrongfully removed or retained in violation of the

Hague Convention on the Civil Aspects of

International Child Abduction.

(b) A [prosecutor or appropriate public official]

acting under this section acts on behalf of the

court and may not represent any party.

SECTION 316. ROLE OF [LAW

ENFORCEMENT].

At the request of a [prosecutor or other

appropriate public official] acting under Section

315, a [law enforcement officer] may take any

SECTION 307. DUTIES OF SUPPORT

ENFORCEMENT AGENCY.

(a) A support enforcement agency of this State,

upon request, shall provide services to a

[petitioner] in a proceeding under this [Act].

(b) A support enforcement agency of this State

that is providing services to the [petitioner] as

appropriate shall:

(1) take all steps necessary to enable an

appropriate tribunal in this State or another State

to obtain jurisdiction over the [respondent];

(2) request an appropriate tribunal to set a date,

time, and place for a hearing;

(3) make a reasonable effort to obtain all

relevant information, including information as to

income and property of the parties;

(4) within [two] days, exclusive of Saturdays,

Sundays, and legal holidays, after receipt of a

written notice in a record from an initiating,

responding, or registering tribunal, send a copy of

the notice to the [petitioner];

(5) within [two] days, exclusive of Saturdays,

Sundays, and legal holidays, after receipt of a

written communication in a record from the

[respondent] or the [respondent’s] attorney, send

a copy of the communication to the [petitioner];

and

(6) notify the [petitioner] if jurisdiction over the

[respondent] cannot be obtained.

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lawful action reasonably necessary to locate a

child or a party and assist [a prosecutor or

appropriate public official] with responsibilities

under Section 315.

(c) A support enforcement agency of this State

that requests registration of a child-support order

in this State for enforcement or for modification

shall make reasonable efforts:

(1) to ensure that the order to be registered is

the controlling order; or

(2) if two or more child-support orders exist and

the identity of the controlling order has not been

determined, to ensure that a request for such a

determination is made in a tribunal having

jurisdiction to do so.

(d) A support enforcement agency of this State

that requests registration and enforcement of a

support order, arrears, or judgment stated in a

foreign currency shall convert the amounts stated

in the foreign currency into the equivalent

amounts in dollars under the applicable official or

market exchange rate as publicly reported.

(e) A support enforcement agency of this State

shall [issue or] request a tribunal of this State to

issue a child-support order and an

income-withholding order that redirect payment of

current support, arrears, and interest if requested

to do so by a support enforcement agency of

another State pursuant to Section 319 of the

Uniform Interstate Family Support Act.

(f) This [Act] does not create or negate a

relationship of attorney and client or other

fiduciary relationship between a support

enforcement agency or the attorney for the

agency and the individual being assisted by the

agency.

SECTION 308. DUTY OF [ ATTORNEY

GENERAL STATE OFFICIAL OR AGENCY].

(a) If the Attorney General [appropriate state

official or agency] determines that the support

enforcement agency is neglecting or refusing to

provide services to an individual, the Attorney

General [state official or agency] may order the

agency to perform its duties under this [Act] or

may provide those services directly to the

individual.

(b) The [appropriate state official or agency] may

determine that a foreign country or political

subdivision has established a reciprocal

arrangement for child support with this State and

take appropriate action for notification of the

determination.

SECTION 310. DUTIES OF [STATE

INFORMATION AGENCY].

(a) The [Attorney General’s Office, State

Attorney’s Office, State Central Registry or other

information agency] is the state information

agency under this [Act].

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(b) The state information agency shall:

(1) compile and maintain a current list, including

addresses, of the tribunals in this State which

have jurisdiction under this [Act] and any support

enforcement agencies in this State and transmit a

copy to the state information agency of every

other State;

(2) maintain a register of names and addresses

of tribunals and support enforcement agencies

received from other States;

(3) forward to the appropriate tribunal in the

place [county] in this State in which the individual

obligee who is an individual or the obligor resides,

or in which the obligor’s property is believed to be

located, all documents concerning a proceeding

under this [Act] received from an initiating tribunal

or the state information agency of the initiating

State; and

(4) obtain information concerning the location of

the obligor and the obligor’s property within this

State not exempt from execution, by such means

as postal verification and federal or state locator

services, examination of telephone directories,

requests for the obligor’s address from employers,

and examination of governmental records,

including, to the extent not prohibited by other law,

those relating to real property, vital statistics, law

enforcement, taxation, motor vehicles, driver’s

licenses, and social security.

SECTION 507. ADMINISTRATIVE

ENFORCEMENT OF ORDERS.

(a) A party or support enforcement agency

seeking to enforce a support order or an

income-withholding order, or both, issued by a

tribunal of another State may send the documents

required for registering the order to a support

enforcement agency of this State.

(b) Upon receipt of the documents, the support

enforcement agency, without initially seeking to

register the order, shall consider and, if

appropriate, use any administrative procedure

authorized by the law of this State to enforce a

support order or an income-withholding order, or

both. If the obligor does not contest

administrative enforcement, the order need not be

registered. If the obligor contests the validity or

administrative enforcement of the order, the

support enforcement agency shall register the

order pursuant to this [Act].

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Part D - Unique Provisions

From the analyses above, it can be seen that the UCCJEA and UIFSA share many commonconcepts and processes. However, there are certain aspects of each act that have nocounterpart.

D-1 UCCJEA - Expedited Processing

Certainly mindful of due process considerations, the goal of the UCCJEA is to resolve custodyand visitation disputes so the child is residing with the proper party as quickly as possible. Thus, determining whether a court is initially empowered to act is to be resolved expeditiously. Likewise, appeals are to be expedited to obtain finality.

UCCJEA

SECTION 107. PRIORITY. If a question of existence or exercise of jurisdiction under this [Act] is

raised in a child-custody proceeding, the question, upon request of a party, must be given priority on the

calendar and handled expeditiously.

SECTION 314. APPEALS. An appeal may be taken from a final order in a proceeding under this

[article] in accordance with [expedited appellate procedures in other civil cases]. Unless the court

enters a temporary emergency order under Section 204, the enforcing court may not stay an order

enforcing a child-custody determination pending appeal.

D-2 Temporary Visitation

The primary focus of the UCCJEA is resolution of custody issues. Nevertheless, being able toexercise visitation is an important right as well. If the custody order has a specific visitationschedule, it can, and should, be enforced. If visitation is authorized in the custody order but thedetails are not specified, an enforcing court can enter a temporary visitation order while aspecific order is sought in the court with ECJ.

UCCJEA

SECTION 304. TEMPORARY VISITATION.

(a) A court of this State which does not have jurisdiction to modify a child-custody determination, may

issue a temporary order enforcing:

(1) a visitation schedule made by a court of another State; or

(2) the visitation provisions of a child-custody determination of another State that does not provide for

a specific visitation schedule.

(b) If a court of this State makes an order under subsection (a)(2), it shall specify in the order a period

that it considers adequate to allow the petitioner to obtain an order from a court having jurisdiction

under the criteria specified in [Article] 2. The order remains in effect until an order is obtained from the

other court or the period expires.

D-3 UIFSA - Multiple Orders

One of the major challenges facing the drafters of the UIFSA was dealing with the multiplesupport orders that were created under URESA and RURESA. Based on a series of casesholding an order for support could always be modified as circumstances changed, an existing

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order was not entitled to full faith and credit. Assuming the issuing court had subject matter andpersonal jurisdiction, it could enter an order that set a different amount of support as well as adifferent duration.

The task under the UIFSA became to set out a process to make one of the existing multipleorders be the “controlling” order. The resolution is founded upon what state is in the bestsituation to address the needs of the child or the ability of the obligor to pay. As a starting point,if there is only one order, it is the controlling order even if no one currently resides in the statethat issued it. When there are at least two orders:

A. The order issued by a “home “ state is the controlling order.B. If only one of the states that issued one of the orders has a person residing in that state,it is the controlling order.C. If no one resides in any of the states that entered the orders, there is no controllingorder per se and a tribunal that currently has subject matter and personal jurisdiction is toestablish a “replacement” order that will be the controlling order.

The important aspect of a controlling order determination is that it determines the one orderentitled to prospective enforcement. Attached to this prospective enforcement is the exclusivityto modify the prospective support obligation, i.e. the controlling order establishes the tribunalwith CEJ to modify.

What a controlling order determination does not do is impact the amount of the consolidatedarrears. Case law and a specific provision in RURESA established the concept that asuccessive order did not nullify or supercede the existing order(s) so that support continued toaccrue. What does occur is the support amounts accrue simultaneously and not in theaggregate. The UIFSA and its predecessors specifically provide that payments made pursuantto one order are to be applied to the support accruing under another order in existence duringthe same time period.

UIFSA

SECTION 207. RECOGNITION DETERMINATION OF CONTROLLING CHILD-SUPPORT ORDER.

(a) If a proceeding is brought under this [Act] and only one tribunal has issued a child-support order,

the order of that tribunal controls and must be so recognized.

(b) If a proceeding is brought under this [Act], and two or more child-support orders have been issued

by tribunals of this State or another State with regard to the same obligor and same child, a tribunal of

this State having personal jurisdiction over both the obligor and individual obligee shall apply the

following rules in determining and by order shall determine which order controls to recognize for

purposes of continuing, exclusive jurisdiction:

(1) If only one of the tribunals would have continuing, exclusive jurisdiction under this [Act], the order

of that tribunal controls and must be so recognized.

(2) If more than one of the tribunals would have continuing, exclusive jurisdiction under this [Act]:

(A) an order issued by a tribunal in the current home State of the child controls; and must be so

recognized, but

(B) if an order has not been issued in the current home State of the child, the order most recently

issued controls and must be so recognized.

(3) If none of the tribunals would have continuing, exclusive jurisdiction under this [Act], the tribunal of

this State having jurisdiction over the parties shall issue a child-support order, which controls and must

be so recognized.

(c) If two or more child-support orders have been issued for the same obligor and same child, and if

the obligor or the individual obligee resides in this State, an individual upon request of a party who is an

individual or a support enforcement agency, may request a tribunal of this State having personal

jurisdiction over both the obligor and the obligee who is an individual shall to determine which order

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controls and must be so recognized under subsection (b). The request must be accompanied by a

certified copy of every support order in effect. The requesting party shall give notice of the request to

each party whose rights may be affected by the determination. The request may be filed with a

registration for enforcement or registration for modification pursuant to Article 6, or may be filed as a

separate proceeding.

(d) A request to determine which is the controlling order must be accompanied by a copy of every

child-support order in effect and the applicable record of payments. The requesting party shall give

notice of the request to each party whose rights may be affected by the determination.

(e) The tribunal that issued the controlling order under subsection (a), (b), or (c) is the tribunal that has

continuing, exclusive jurisdiction under Section to the extent provided in Section 205 or 206.

(f) A tribunal of this State which that determines by order the identity of which is the controlling order

under subsection (b)(1) or (2) or (c), or which that issues a new controlling order under subsection

(b)(3), shall state in that order:

(1) the basis upon which the tribunal made its determination;

(2) the amount of prospective support, if any; and

(3) the total amount of consolidated arrears and accrued interest, if any, under all of the orders after all

payments made are credited as provided by Section 209.

(g) W ithin [30] days after issuance of an order determining the identity of which is the controlling order,

the party obtaining the order shall file a certified copy of it with in each tribunal that issued or registered

an earlier order of child support. A party who obtains or support enforcement agency obtaining the

order and that fails to file a certified copy is subject to appropriate sanctions by a tribunal in which the

issue of failure to file arises. The failure to file does not affect the validity or enforceability of the

controlling order.

(h) An order that has been determined to be the controlling order, or a judgment for consolidated

arrears of support and interest, if any, made pursuant to this section must be recognized in proceedings

under this [Act].

SECTION 209. CREDIT FOR PAYMENTS.

Amounts A tribunal of this State shall credit amounts collected and credited for a particular period

pursuant to a support order any child-support order against the amounts owed for the same period

under any other child-support order for support of the same child issued by a tribunal of this or another

State must be credited against the amounts accruing or accrued for the same period under a support

order issued by the tribunal of this State.

D-4 UIFSA - Minor as a Party

The immutable fact is that minors are the parents of children. Lest there be doubt about thecapacity of a minor to bring an action for support, the UIFSA makes it clear a minor can pursueobtaining support without the necessity of going through a “next friend”.

UIFSA

SECTION 302. ACTION PROCEEDING BY MINOR PARENT. A minor parent, or a guardian or other

legal representative of a minor parent, may maintain a proceeding on behalf of or for the benefit of the

minor’s child.

D-5 UIFSA - Defense of Nonparentage

There are several defenses that can be raised at the time of registration of another state’sorder. See C-1. There are other defenses that can be raised to the specific remedy sought. One issue that can not be raised collaterally is parentage. Any attack on that issue must bemade in the forum that issued the original order.

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UIFSA

SECTION 315. NONPARENTAGE AS DEFENSE. A party whose parentage of a child has been

previously determined by or pursuant to law may not plead nonparentage as a defense to a proceeding

under this [Act].

Part E - Interjurisdictional applications

E-1 Tribes

The Indian Child Welfare Act (ICWA) applies primarily in custody situations where placement isbeing sought in institutions or with persons other than the parents. The UCCJEA seeksharmony with the ICWA by deferring to tribal proceedings and recognizing a tribal order whenappropriate. The UIFSA recognizes the authority of tribal courts to enter valid support ordersand treats a tribe the same as other “states”. It should be noted that FFCCSOA applies both tostates and tribes.

UCCJEA UIFSA

SECTION 104. APPLICATION TO INDIAN

TRIBES.

(a) A child-custody proceeding that pertains to an

Indian child as defined in the Indian Child W elfare

Act, 25 U.S.C. § 1901 et seq., is not subject to this

[Act] to the extent that it is governed by the Indian

Child W elfare Act.

[(b) A court of this State shall treat a tribe as if it

were a State of the United States for the purpose

of applying [Articles] 1 and 2.]

[(c) A child-custody determination made by a tribe

under factual circumstances in substantial

conformity with the jurisdictional standards of this

[Act] must be recognized and enforced under

[Article] 3.]


(21) “State” means a State of the United States,

the District of Columbia, Puerto Rico, the United

States Virgin Islands, or any territory or insular

possession subject to the jurisdiction of the United

States. The term includes:

(A) an Indian tribe; and

E-2 International

The UCCJEA provides a general legal framework for recognition and enforcement of foreigncustody and visitation decrees originating from foreign jurisdictions. It specifies that a decreemade by a party to the Hague Convention on the Civil Aspects of International Child Abductionwill be enforced and the United State is a party to Hague Convention on the Civil Aspects ofInternational Child Abduction.

The United State is not a party to any international convention or agreement regarding child orspousal support. However, the UIFSA does provide for recognition of foreign support orders. The basis for recognition under the UIFSA 96 was solely a substantial similarity between thelaws and procedures. The UIFSA 2001 was revised to implement federal law that empowersthe State Department in conjunction with OCSE to declare a foreign jurisdiction to be areciprocating “state”. It also empowers a State to make such a declaration in the absence of afederal declaration. One the foreign jurisdiction is declared to be a “state”, the other provisionsof the UIFSA apply.

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One issue that does have distinct treatment is the ability of a U. S. State to modify the supportorder of a foreign jurisdiction. If no one resides in the foreign jurisdiction that issued the order,the general modification provisions apply. The issue arose when one party remained in theforeign jurisdiction with the order. In the UIFSA 96 § 611(a)(2), a foreign resident could almostunilaterally obtain a modification in the U. S.. [see C-2] In the UIFSA 2001, either party wasgiven the opportunity to seek a modification in the U. S., but only upon a showing that theforeign jurisdiction where the party resides “will not or may not” modify it’s order.

UCCJEA UIFSA

SECTION 105. INTERNATIONAL

APPLICATION OF [ACT].

(a) A court of this State shall treat a foreign

country as if it were a State of the United States

for the purpose of applying [Articles] 1 and 2.

(b) Except as otherwise provided in subsection

(c), a child-custody determination made in a

foreign country under factual circumstances in

substantial conformity with the jurisdictional

standards of this [Act] must be recognized and

enforced under [Article] 3.

(c) A court of this State need not apply this [Act] if

the child custody law of a foreign country violates

fundamental principles of human rights.

SECTION 302. ENFORCEMENT UNDER

HAGUE CONVENTION.

Under this [article] a court of this State may

enforce an order for the return of the child made

under the Hague Convention on the Civil Aspects

of International Child Abduction as if it were a

child-custody determination.


(21) “State” means a State of the United States,

the District of Columbia, Puerto Rico, the United

States Virgin Islands, or any territory or insular

possession subject to the jurisdiction of the United

States. The term includes:

. . .

(B) a foreign country or political subdivision

jurisdiction that:

(I) has been declared to be a foreign

reciprocating country or political subdivision under

federal law;

(ii) has established a reciprocal arrangement for

child support with this State as provided in Section

308; or

(iii) has enacted a law or established procedures

for the issuance and enforcement of support

orders which are substantially similar to the

procedures under this [Act], the Uniform

Reciprocal Enforcement of Support Act, or the

Revised Uniform Reciprocal Enforcement of

Support Act.


CHILD-SUPPORT ORDER OF FOREIGN

COUNTRY OR POLITICAL SUBDIVISION.

(a) If a foreign country or political subdivision that

is a State will not or may not modify its order

pursuant to its laws, a tribunal of this State may

assume jurisdiction to modify the child-support

order and bind all individuals subject to the

personal jurisdiction of the tribunal whether or not

the consent to modification of a child-support

order otherwise required of the individual pursuant

to Section 611 has been given or whether the

individual seeking modification is a resident of this

State or of the foreign country or political

subdivision.

(b) An order issued pursuant to this section is the

controlling order.

The Interstate Child UCCJEA & UIFSA -...

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